AUTHENTICATED ,
US. GOVERNMENT
INFORMATION ^
ALLEGATIONS OF SELECTIVE PROSECUTION: THE
EROSION OF PUBLIC CONFIDENCE IN OUR
FEDERAL JUSTICE SYSTEM
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
AND THE
SUBCOMMITTEE ON COMMERCIAL AND
ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATHTS
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
OCTOBER 23, 2007
Serial No. 110-61
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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ALLEGATIONS OF SELECTIVE PROSECUTION: THE
EROSION OF PUBLIC CONHDENCE IN OUR
FEDERAL JUSTICE SYSTEM
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
AND THE
SUBCOMMITTEE ON COMMERCIAL AND
ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATDTS
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
OCTOBER 23, 2007
Serial No. 110-61
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
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For sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS,
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. “BOBBY” SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
LINDA T. SANCHEZ, California
STEVE COHEN, Tennessee
HANK JOHNSON, Georgia
BETTY SUTTON, Ohio
LUIS V. GUTIERREZ, Illinois
BRAD SHERMAN, California
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Jr., Michigan, Chairman
LAMAR SMITH, Texas
F. JAMES SENSENBRENNER, jR.,
Wisconsin
HOWARD COBLE, North Carolina
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
CHRIS CANNON, Utah
RIC KELLER, Florida
DARRELL ISSA, California
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JIM JORDAN, Ohio
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. “BOBBY”
MAXINE WATERS, California
WILLIAM D. DELAHUNT, Massachusetts
JERROLD NADLER, New York
HANK JOHNSON, Georgia
ANTHONY D. WEINER, New York
SHEILA JACKSON LEE, Texas
ARTUR DAVIS, Alabama
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio
SCOTT, Virginia, Chairman
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
F. JAMES SENSENBRENNER, jR.,
Wisconsin
HOWARD COBLE, North Carolina
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
Bobby Vassar, Chief Counsel
Michael Volkov, Minority Counsel
Subcommittee on Commercial and Administrative Law
LINDA T. SANCHEZ, California, Chairwoman
JOHN CONYERS, jR., Michigan CHRIS CANNON, Utah
HANK JOHNSON, Georgia JIM JORDAN, Ohio
ZOE LOFGREN, California RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida
MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
(II)
CONTENTS
OCTOBER 23, 2007
Page
OPENING STATEMENTS
The Honorable Robert C. “Bobby” Scott, a Representative in Congress from
the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism,
and Homeland Security 1
The Honorable J. Randy Forbes, a Representative in Congress from the
State of Virginia, and Ranking Member, Subcommittee on Crime, Ter-
rorism, and Homeland Security 3
The Honorable Linda T. Sanchez, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on Commercial and
Administrative Law 194
The Honorable Chris Cannon, a Representative in Congress from the State
of Utah, and Ranking Member, Subcommittee on Commercial and Adminis-
trative Law 200
The Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan, Chairman, Committee on the Judiciary, and Member,
Subcommittee on Commercial and Administrative Law 207
WITNESSES
The Honorable Richard Thornburgh, Kirkpatrick and Lockhart Preston Gates
Ellis, LLP, Washington, DC
Oral Testimony 209
Prepared Statement 213
Mr. Donald C. Shields, Professor, University of Missouri-St. Louis, Kansas
City, MO
Oral Testimony 224
Prepared Statement 226
G. Douglas Jones, Esquire, Whatley, Drake and Kallas, Birmingham, AL
Oral Testimony 271
Prepared Statement 274
APPENDIX
Material Submitted for the Hearing Record 388
(III)
ALLEGATIONS OF SELECTIVE PROSECUTION:
THE EROSION OF PUBLIC CONFIDENCE IN
OUR FEDERAL JUSTICE SYSTEM
TUESDAY, OCTOBER 23, 2007
House of Representatives,
Subcommittee on Crime, Terrorism,
AND Homeland Security
Subcommittee on Commercial
AND Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittees met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Robert
C. “Bobby” Scott (Chairman of the Subcommittee on Crime, Ter-
rorism, and Homeland Security) presiding.
Present from the Subcommittee on Crime, Terrorism, and Home-
land Security: Representatives Scott, Waters, Delahunt, Johnson,
Jackson Lee, Davis, Baldwin, Sutton, Forbes, Gohmert, Coble,
Chabot, and Lungren.
Present from the Subcommittee on Commercial and Administra-
tive Law: Representatives Conyers, Sanchez, Johnson, Lofgren,
Delahunt, Watt, Cohen, Cannon, Jordan, and Keller.
Staff present: Bobby Vassar, Chief Counsel, Subcommittee on
Crime, Terrorism, and Homeland Security; Michone Johnson, Chief
Counsel, Subcommittee on Commercial and Administrative Law;
Eric Tamarkin, Majority Counsel; Mario Dispenza, Majority Coun-
sel; and Veronica Eligan, Professional Staff Member.
Mr. Scott. The hearing will come to order.
Good morning. I am pleased to open this hearing on Allegations
of Selective Prosecution: The Erosion of Public Confidence in our
Eederal Judicial System.
Eor some months now, we have been looking at the issue of
whether some United States attorneys were fired because of their
unwillingness to bring politically based prosecutions. Of course, if
there is evidence that some U.S. attorneys were fired for their fail-
ure to bring politically based prosecutions, that leaves the question
of whether any of those not fired kept their jobs because they were
willing to bring such prosecutions.
Today’s hearing focuses on this aspect of the question as the con-
tinuing investigation of the issue of whether there is inappropriate
politicization within the Department of Justice and looking at in-
stances in which prosecutions appear to have been politically moti-
vated.
( 1 )
2
United States Supreme Court Justice Robert Jackson once said,
“While the prosecutor at his best is one of the most beneficent
forces in our society, when he acts from malice or other base mo-
tives, he is one of the worst. Therefore, he should have as nearly
as possible a detached and impartial view of all groups in his com-
munity.”
Unfortunately, however, evidence has come to light that the
United States Department of Justice may be falling far short of
holding a detached and impartial view. Allegations have risen that
U.S. attorneys have aggressively investigated political opponents
for activity that was only technically criminal or not even criminal
at all, then timed the announcement of indictments to affect elec-
tions.
U.S. attorneys have also been accused of selectively prosecuting
only Democrats for activities in which Republicans have engaged in
similar activities. In fact, the latest statistics in one study that we
will hear today showed that of 375 investigations of political can-
didates and officeholders initiated under the Bush administration’s
Department of Justice, 80 percent have been against Democrats,
and this disparity in the department’s focus calls its objectivity into
question.
We have researched the trend and uncovered a number of dis-
turbing incidents that raise questions as to the department’s im-
partiality, and since we announced plans to conduct this hearing,
a steady flow of cases has come to our attention that deserve atten-
tion, but time prohibits us from detailing them fully.
We will hear about a number of specific cases today, but I want
to focus briefly on just one case that highlights both the doubtful-
ness and the selectiveness of prosecutorial activity.
Paul Minor was a major Democratic contributor in Mississippi
and a trial lawyer who had won two major lawsuits against compa-
nies that may have been involved with the U.S. attorney. He was
indicted for guaranteeing loans and providing houses for Mis-
sissippi Supreme Court Justice Oliver Diaz. The justice had re-
cently won an election to the Mississippi high court over a close
friend of the U.S. attorney’s and was indicted on corruption charges
for his dealings with Paul Minor.
Like a number of other cases we will hear today, the indictments
were announced 90 days before a major election, in this case the
2003 gubernatorial election, and that announcement was widely
seen as an attempt to paint the Democratic Party as corrupt. The
dubiousness of the allegations comes from the fact that although
there were, in fact, financial dealings between Paul Minor and the
justice, there was no evidence of influencing the justice or even an
attempt to influence him.
The prosecution offered no evidence that the justice presided over
any cases that Paul Minor brought before the court. Moreover, in-
vestigators never even interviewed the justice’s fellow jurists to de-
termine whether he had improperly influenced any cases involving
Paul Minor or anyone associated with him.
And, finally, the activity for which Paul Minor was indicted had
been commonplace in Mississippi, and prosecutions for such impro-
priety had never been brought in the past. Ultimately, Paul Minor
and the justice were acquitted of any charges of activity between
3
them. However, the acquittal was long after the Mississippi guber-
natorial race, which was won by the Republican candidate.
The allegation of selectivity in the case stems from the fact that
the U.S. attorney apparently ignored activity of a major Republican
contributor and brother-in-law to a Republican U.S. senator. The
Republican contributor also made loans to the justice and was Paul
Minor’s co-owner of the very building that the justice used as his
residence for which Paul Minor was indicted. Yet the Republican
contributor was not even investigated, let alone indicted.
In fact, when the investigating FBI agent brought the evidence
about this very Republican contributor to the attention of the U.S.
attorney, the agent was transferred to an antiterrorism unit in
Guantanamo Bay, Cuba, and was replaced by an agent who had
contributed to the Republican Governor Haley Barbour’s campaign.
Mr. Minor had entered a lengthy and articulate motion to dis-
miss the charges against him, which the trial court did not grant.
However, without objection, I would like to enter Mr. Minor’s Mo-
tion to Dismiss on the record so the details of the allegation here
can be fully recognized.
This is just one of a growing list of cases in which U.S. attorneys
have allegedly attacked political rivals, while allowing similar ac-
tivity by its allies to go unchallenged. It is incumbent upon us as
part of our congressional oversight responsibilities to determine to
what extent these determined allegations are true, and that is why
we are holding this hearing.
I would like to now recognize my friend and Virginia colleague,
the distinguished Ranking Member of the Subcommittee, the Hon-
orable Randy Forbes who represents Virginia’s Fourth Congres-
sional District.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Chairman, today is another sad and embarrassing day for
the Judiciary Committee. Rather than focusing on important issues
to the American people, such as the rise in violent crime, the threat
of terrorism, violence on college campuses, the increase in inter-
national gangs, the invasion of Chinese espionage agents into our
country, the majority is wasting our time to try and create smoke
where there is no fire and deal once again with politics, politics and
politics.
It is sad to see how the historical traditions surrounding the Ju-
diciary Committee have been jettisoned in favor of partisanship, all
to the detriment of the American people. Is it any wonder why
Congress’s approval ratings are so low right now?
So we bring in our usual cadre of witnesses, and we have hear-
ings on things that we never did before: ongoing trials. We bring
people in here, and then we limit the cross-examination to these
fine men to 5 minutes apiece. Wouldn’t that be wonderful if you
could be in a trial setting, some of the very trials that the Chair-
man mentioned earlier, but you could say to the attorneys who
were doing the cross-examination, “But you are only going to have
5 minutes to ask these people any questions,” and, also, it would
be good because prosecutors have barred most of these cases from
coming in here and putting on their side of the story.
This hearing is not a review of the abuse of prosecutorial discre-
tion. We have raised that for months now. If it were, we would be
4
examining the Duke Lacrosse players where the defendants were
fully exonerated and the prosecutor disbarred.
Some of these cases, we have situations where you had individ-
uals brought before a court, the judge tried the case, the jury found
them guilty, they were sentenced, they have an appeals process to
go through, and yet we want to look at that. But in other cases,
we have situations, as in the Nifong case and the Duke players,
where they have been completely exonerated.
Have we listened to that? Have we looked at that? No. Have we
heard anything about the political prosecutorial discretion that was
used in the Texas case against Tom DeLay? No. Have we looked
at the situation in Louisiana where this Subcommittee went down,
refused to take testimony on it, but they actually came to another
hearing we had, and the concern there was that individuals, the
police and members of the chamber of commerce were saying that
the prosecutors were not prosecuting corruption, that, in fact, only
12 percent of the people arrested or less than 12 percent ever went
to jail.
But we do not want to listen to those cases. Instead, we are sit-
ting here while the majority embraces baseless claims made by
criminal defendants who have no other forum in which to allege
prosecutorial misconduct. This is not a surprise. These ridiculous
claims have turned the Judiciary Committee into judge and jury of
criminal prosecutions. I cannot think of a more inappropriate abuse
of this great institution.
In its zeal to make mountains out of molehills, the majority is
questioning the conviction of former Alabama Governor Don
Siegelman, who was found guilty beyond a reasonable doubt of
bribery, mail fraud and conspiracy by a jury and sentenced to 7
years in prison. Governor Siegelman was found to be a corrupt poli-
tician who sold his public office for money. He was prosecuted by
a career prosecutor. He was found guilty by a jury of his peers and
sentenced by a Federal judge with a record of fairness.
I ask unanimous consent, Mr. Chairman, that statements by U.S.
Attorney Leura Garrett Canary and Acting U.S. Attorney Louis V.
Franklin be submitted for the record.
Mr. Scott. Without objection.
[The statements of Ms. Canary and Mr. Franklin follow:]
5
PRESS RELEASE
Office of the
United States Attorney
Middle District of Alabama
Ucura Garrett Canary
P, 0. Box 197 • Montgomery, Alabama 36101 • 334/223-7280
Contact Bertha Moore
Acting Press Officer
(334) 223-7280
May 16, 2002
The following is a statement from United States Attorney
Leura Garrett Canary:
"There has been recent speculation in the press as to
whether I will recuse myself from certain matters that may or may
not be pending in my office. While it would not be appropriate
for me to discuss any investigations that may or may not be under
review in my office, I can tell you that in circumstances in
which recusal issues are raised, I will discuss the propriety of
my involvement with the Department of Justice and have done so in
connection with recent inquiries. As to any matters pertaining
to any current investigation of state officials or matters of
state government which may or may not be underway, the Department
of Justice has advised me that no actual conflicts of interest
exist. However, out of an abundance of caution, I have requested
Alabama Rules of Professional Conduct . Rule 3.6, requires a
statement explaining chat the charge is merely an accusation and
that the defendant is presumed innocent until and unless proven
guilty .
6
that I be recused to avoid any question about my impartiality.
It is of the utmost importance to me, as a United States
Attorney, that the people in the Middle District of Alabama and
throughout the State have confidence in the manner in which
matters are handled by me and by the office I serve and that no
one has a basis under which to question the integrity of any
investigation undertaken by my office. To that end, the
Department has assigned responsibility for the supervision of any
investigation regarding state officials or matters of state
government to First Assistant United States Attorney Charles R.
Niven. In addition, if such investigation were to develop or
exist, the Department's Criminal Division, Public Integrity
Section, will play a significant role in the conduct of such
investigation. I am confident these measures adequately address
any concerns the public may have."
Alabama Rules of Professional Conduct . Rule 3.6, requires a
statement explaining that the charge is merely an accusation and
that the defendant is presumed innocent until and unless proven
guilty.
7
iBcpartmcni of Juottco
Acting United States Attorney Louis V. Franklin, Sr.
Middie District of Alabama
FOR IMMEDIATE RELEASE
www.usdoi.gov/usao/alm
CONTACT: Retta Goss
Telephone (334) 223-7280
Fax (334) 223-7560
Cell (334) 546-1930
STATEMENT OF LOUIS V. FRANKLIN. SR..
ACTING U.S. ATTORNEY IN THE SIEGELMAN/SCRUSHY PROSECUTION
“Neither I nor the U.S. Attorney’s Office for the Middle District of Alabama (MDAL) have
heretofore seen the affidavit referenced in Time’s article, initially entitled “Rove Linked to
Prosecution of Ex- Alabama Governor," and later changed to “Rove Named in Alabama
Controversy,” stated Louis V. Franklin. “Thus, 1 cannot speak to the affidavit itself or to the
specific allegations made by Dana Jill Simpson except to say that its timing is suspicious, and
other participants in the alleged conversation say it didn’t happen, most notably Terry Butts, who
represented Richard Scrushy during the trial of this case.
I can, however, state with absolute certainty that the entire story is misleading because Karl
Rove had no role whatsoever in bringing about the investigation or prosecution of former
Governor Don Siegelman. It is intellectually dishonest to even suggest that Mr. Rove influenced
or had any input into the decision to investigate or prosecute Don Siegelman. That decision was
made by me, Louis V. Franklin, Sr., as the Acting U.S. Attorney in the case, in conjunction with
the Department of Justice’s Public Integrity Section and the Alabama Attorney General’s Office.
Each office dedicated both human and financial resources. Our decision was based solely upon
evidence in the case, evidence that unequivocally established that former Governor Siegelman
committed bribery, conspiracy, mail fraud, obstmction of justice, and other serious federal
crimes.
Our decision to prosecute Don Siegelman and Richard Scmshy was based upon evidence
uncovered by federal and state agents, as well as a federal special grand jury which convened in
the case. The investigation was precipitated by evidence uncovered by a Mobile investigative
reporter, Eddie Curran, and a series of stories written by him. The investigation began about the
time an article appeared in the Mobile Press-Register alleging an improper connection between
then-Govemor Siegelman and financial supporter/businessman/lobbyist, Clayton “Laimy”
Young, months before Leura Canary was appointed as the U.S. Attorney for the MDAL.
When the investigation first began, Leura Canary was not the U.S. Attorney for the MDAL.
Initially, the investigation was brought to the attention of the Interim U.S. Attorney, Charles
Niven, a career prosecutor in the U.S. Attorney’s Office. Niven had almost 25 years of
experience as an Assistant U.S. Attorney in the office prior to his appointment as Interim U.S.
Attorney upon U.S. Attorney Redding Pitf s (currently attorney of record for Defendant
Siegelman in this case) departure.
8
Ms. Canary became U.S. Attorney in September 2001. In May 2002, very early in the
investigation, and before any significant decisions in the case were made, U.S. Attorney Leura
Canary completely recused herself from the Siegelman matter, in response to unfounded
accusations that her husband’s Republican ties created a conflict of interest. Although
Department of Justice officials reviewed the matter and opined that no conflict, actual or
apparent, existed, Canary recused herself anyway to avoid even an appearance of impropriety. I,
Louis V. Franklin, Sr., was appointed Acting U.S. Attorney in the case after Charles Niven
retired in January 2003. I have made all decisions on behalf of this office in the case since my
appointment as Acting U.S. Attorney. U.S. Attorney Canary has had no involvement in the case,
directly or indirectly, and has made no decisions in regards to the investigation or prosecution
since her recusal. Immediately following Canary’s recusal, appropriate steps were taken to
ensure that she had no involvement in the case. Specifically, a firewall was established and all
documents relating to the investigation were moved to an off-site location. The off-site became
the nerve center for most, if not all, work done on this case, including but not limited to the
receipt, review, and discussion of evidence gathered during the investigation.
After Canary’s recusal, the investigation proceeded much like any other investigation. Federal
and state agents began tracking leads first developed by investigative reporter Eddie Curran,
leads that eventually led to criminal charges against local architect William Curtis Kirsch,
Clayton “Laimy” Young, and Nick Bailey, an aide to the former Governor. Kirsch, Young, and
Bailey pled guilty to informations charging violations of federal bribery and/or tax crimes on
June 24,2003.
Armed with cooperation agreements from Bailey, Young and Kirsch, the investigation
continued. In June 2004, a special grand jury was convened to further assist in the investigation.
An indictment was returned under seal against Mr. Siegelman and ex-HealthSouth CEO Richard
Scrushy on May 17, 2005. The first superseding indictment was filed and made public on
October 26, 2005, charging Siegelman, Scrushy, Siegelman’s former Chief of Staff Paul
Hamrick, and Siegelman’s Transportation Director Gary Mack Roberts. Immediately after the
indictment was announced, Messrs. Scrushy and Siegelman publicly denounced the indictment
and personally attacked the prosecutors. Those attacks have continued throughout the case and
have now escalated to charges that Karl Rove had something to do with this investigation or
prosecution. These charges are simply untrue.
The indictment was solely the product of evidence uncovered through an investigation that
began before Leura Canary became U.S. attorney and continued for three years after she recused
herself. I have never spoken with or even met Karl Rove. As Acting U.S. Attorney in the case, I
made the decision to prosecute the former Governor. My decision was based solely on the
evidence uncovered by federal and state agents, as well as the special grand jury, establishing
that Mr. Siegelman broke the law.
During the investigation, I consulted with career prosecutors in the Public Integrity Section of
Main Justice to obtain guidance on the prosecution of the former Governor, but I alone
maintained the decision-making authority to say yea or nay as to whether or not the U.S.
Attorney’s Office for die MDAL would proceed with the prosecution. Contrary to how the
prosecution is portrayed in Adam Zagorin’s Time article, rather than the U.S. Department of
9
Justice pushing the MDAL to move forward with the prosecution of former Governor
Siegelman, the push has always come from the Middle District’s U.S. Attorney s Office and has
been spearheaded by me as the Acting U.S. Attorney in the case. My sole motivation for
pushing the prosecution was a firmly held belief, supported by overwhelming evidence and the
law, that former Governor Siegelman had broken the law and traded his public office for
personal and political favors. Ultimately, a jury of former Governor Siegelman’s peers,
consisting of men and women, African-American and Caucasian, agreed and convicted the
former Governor of conspiracy, accepting bribes, and obstructing justice.
I am a career Assistant U.S. Attorney in the Middle District of Alabama. I have served under
both Democratic and Republican appointees. I take my role as a government prosecutor and my
ethical obligations as a lawyer very seriously. I value my integrity above all else. I would never
pursue a prosecution for political reasons, nor would 1 bring any prosecution not warranted by
the evidence or the law. That simply did not happen here, no matter what anyone prints.
In the public interest, one other matter needs to be addressed. Former Gov. Siegelman and
Richard Scrushy and others speaking on their behalf have made public claims that the sentence
recommended by the United States is excessive. The sentence recommended is appropriate
under the advisory U.S. Sentencing Guidelines when all of the relevant conduct associated with
this case is weighed as required by the Guidelines and well established federal law. As in all
other cases prosecuted by this office, the recommended sentence is reasonable under the
Guidelines and existing federal law. The recommended sentence, in brief, is calculated as
follows:
base offense level for bribery - 10;
amount of loss and/or expected gain - add 20 levels;
more than one bribe - add 2 levels;
obstruction of justice - add 2 levels;
organizer/leader in the offense - add 4 levels;
upward departure for systematic pervasive government corruption - add 4 levels.
The resulting adjusted guideline level of 42 and criminal history category of 1 results in a
guideline range of 360 months to life imprisonment. Specific justification and explanation for
this recommendation is fully articulated in the United States Sentencing Memorandum
(Document Number 589) and United States Motion for Upward Departure for Systemaf c
Pervasive Corruption (Document Number 591). These documents are available through
accessing the Court’s Pacer system.”
10
Mr. Forbes. Like any defendant who has heen found guilty and
sentenced to jail, Siegelman is now alleging that he was prosecuted
for political reasons. His credibility is no different than any other
criminal with a motive to say anything to get out of prison.
What is unusual today is that the majority is conducting an in-
vestigation based on these claims. The majority’s misguided reli-
ance on these claims is proven by their decision not to call Jill
Simpson as a witness in this hearing. She is the sole witness who
made the initial allegation about a single telephone call 5 years
after the fact, 11 months after Siegelman’s conviction and 1 month
before his sentencing. Two individuals who she alleged were on the
telephone have submitted affidavits contradicting her claim.
Mr. Chairman, I ask unanimous consent that these statements
be included in the record.
Mr. Scott. Without objection, so ordered.
[The statements of Mr. Riley and Mr. Lembke follow:]
11
AFFIDAVIT
Comes now the undersigned Affiant and, after having been duly sworn, states on oath to the
best of my recollection, infoniiation, and belief, the following statements set forth in pai'agi'aphs one
through six are true and coirect:
My name is Robert R, Riley Jr. I am an attorney practicing law in Birmingham, Alabama at
the law firmof Riley (& Jackson, P.C. I gi’aduated from the Univereity of Alabama in 1988 with a
degree in Economics, Yale Law School in 1 991 , with a J.D. degree, and the University of Cambridge
(England) in 1992, with a LL.M, degree. My father, Bob Riley, was elected Governor of Alabama
in November, 2002 and was re-elected Governor in November, 2006.
I haveno memoiy ofbeing on aphonecall with Jill Simpson (“Ms. Simpson”) on November
18, 2002. Furthemiore, I do not believe a phone call occurred that involved Ms. Simpson, former
Alabama Supreme Court Justice Terry Butts (“Mr. Butts”), Bill Canary (“Mr. Canary”), and myself
on November 18, 2002 in which Mr. Butts allegedly stated that he would confront former Alabama
Governor Don Siegelman (“Mr. Siegelnian”) with photographs of apolitical prank, described in the
following paragraph, and would attempt to convince Mr. Siegelman to concede the election based
on said pliotographs, or that Mr. Canary allegedly made statements to tire effect Uiat “his girls” would
lake care of Mr. Siegelman, or that “Karl” had spoken to, or gone over to, the Department of Justice
and that the Department of Justice was pursuing, or would pursue, a case against Mr. Siegelman.
I have never been told by Mr. Butts, or anyone else, that Mr. Butts spoke with Mr. Siegelman
on November 1 8, 2002, and convinced Mr. Siegelman to concede the 2002 campaign for Governor.
Other than from Ms. Simpson’s Affidavit, I have never heard anyone say that Mr. Siegelman
conceded the election in exchange for not releasing photographs of a political prank involving
Democratic operatives putting up Riley for Governor signs at a KKK rally. Other than in Ms.
12
Simpson’s testimony of September 1 4, 2007, I have never heard that Mr. Siegelman conceded the
election in exchange for immunity from prosecution. I have never made a statement to Ms. Simpson
that there was an agreement between Mr. Butts and Mr. Siegelman regarding Mr, Siegelman’s
concession of the 2002 campaign for Governor.
I do not believe that I have ever met or spoken with Judge Mark Fuller (“Judge Fuller").
Other than what I have read in Ms. Simpson’s testimony and the documents that I understand she
produced at the time of her testimony, I have no knowledge of any ownership in any business or
alleged grudges Ms. Simpson says Judge Fuller holds against Mr. Siegelman, and I never discussed
such with Ms. Simpson. I have spoken with Stewart Hall (“Mr. Hall”) since Ms. Simpson’s
testimony was released. Mr. Hall has told me that, to the best of his recollection, he has never met
or spoken with Judge Fuller at any time in his life, nor does he have knowledge of any businesses
in which Judge Fuller has been involved or any alleged grudge that Judge Fuller has against Mr.
Siegelman. Ms. Simpson stated in her testimony that she understood that Judge Fuller was in
“college” at “Alabama” with Stewart and me. It is my understanding based on an internet search that
Judge Fuller graduated from college at the University of Alabama in 1982. I began college at the
University of Alabama in 1984. Mr. Hall has told me that he began college at the University of
Alabama in January, 1985.
I have never requested Karl Rove’s (“Mr. Rove”) assistance to “speed up” checks for any of
Ms. Simpson’s clients, or his assistance on any other federal matter, nor have I ever told Ms.
Simpson that I was doing so. Ms. Simpson’s belief that I e-mailed a copy of a document to Mr.
Rove regarding a matter associated with a FEMA appeal is not correct. The document that Ms.
Simpson has discussed in her testimony was sent to Mr. Karl Dix, who is an attorney in Atlanta,
2
13
Georgia, practicing with the law finn of Smitli, Currie, and Hancock, who provided assistance with
the appeal. Furthermore, I did not tell Ms. Simpson that Mr. Rove was assisting with this project.
I have not been told or provided information that Mr. Siegelman would be prosecuted if he
ran for political office again after the 2002 election; tliat Mr. Rove had spoken to someone about
prosecuting Mr. Siegelman; that Judge Fuller was going to be appointed tlie Judge ofthe Siegelman-
Scrushy case; that a case would be brouglit against Mr. Siegelman and Mr. Scritshy or that specific
charges were going to be brought against them; nor have I made statements to this effect to Ms.
Simpson. Furthemiore, at no time have 1 participated, in any manner or way, in the criminal
prosecutions of Mr. Siegelman or Mr. Scrushy.
In Jefferson County, Alabama, on the Z/r~^ day of October, 2007, before me, a Notary
Public in and for tire above-state and county, personally appeared Robert R. Riley, Jr., known to me
or proved to be the person named in and who executed the foregoing inslrament, and being first duly
sworn, such person acknowledged that he or she executed said instrument for the purposes therein
contained as his of her free and voluntary act and deed.
Notary Public
My commission expires; UA jc L\ |U
3
14
STATE OF ALABAMA )
JEFFERSON COUNTY )
AFFIDAVIT OF MATTHEW H. LEMBKE
My name is Matthew H. Lembke. I am a partner in the Birmingham, Alabama
office of Bradley Arant Rose & White LLP. 1 received my law degree from the
University of Virginia School of Law in 1991. Following law school, 1 clerked for Judge
J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit and
for Justice Anthony M. Kennedy on the Supreme Court of the United States. I joined
Bradley Arant in 1993 and have practiced at the firm continuously since then,
In the fall of 2002, 1 served as counsel to the Riley for Governor campaign. The
results of the 2002 Alabama gubernatorial election were very close. Bob Riley, then a
congressman, won by approximately 3,000 votes over Governor Don Siegelman. 1
understand it to have been the closest gubernatorial election in Alabama history.
Due to tire closeness of the election. Governor Siegelman initially refused to
concede and asked for a recount of the ballots. What ensued was a legal controversy
involving numerous state courts that extended over a 13 -day period until Governor
Siegelman conceded on Monday, November 18, 2002.
In my role as campaign counsel, I led the Riley campaign’s efforts in that post-
election legal controversy. Within a day or two of the election, the campaign also
retained former Alabama Supreme Court Justice Terry Butts, who had been the
Democratic nominee for Alabama Attorney General in 1998, to join me in leading the
legal effort. From the time that Justice Butts joined the effort on or about November 7,
15
2002, until Governor Siegelman’s concession, Justice Butts and I worked closely together
on all the legal issues.
I have reviewed the affidavit executed by Jill Simpson with regard to certain
alleged events occurring on November 1 8, 2002. 1 have also reviewed Ms. Simpson’s
testimony to representatives of the House Judiciary Committee on September 14, 2007.
I arrived at Rob Riley’s law office around 9:00 a.m. on November 18, 2002.
Justice Butts and I were physically located in Rob Riley’s personal office during most of
the day. Rob’s personal office is a large room with a desk at one end and a sofa and
conference table at the other end. Rob was also present in that office throughout the day.
Justice Butts, Rob, and I worked on various legal issues throughout the morning and into
the early afternoon.
In the early afternoon of November 1 8, we learned from Governor-elect Riley’s
campaign manager, Toby Roth, that a representative of Governor Siegelman had called to
determine where Governor Siegelman could call Governor-elect Riley late that afternoon.
For the next few hours, we sat in Rob’s office waiting to see if the Siegelman call would
take place.
Late that afternoon. Governor Siegelman placed the call to Governor-elect Riley
and stated that he was conceding the election. Along with Justice Butts, Rob Riley, Toby
Roth, and others, I listened to Governor-elect Riley’s end of the conversation. When the
call ended, the room erupted in celebration, and all of us left shortly thereafter to
accompany Governor-elect Riley to the location where he made his victory speech.
I do not recall the phone call that Ms. Simpson claims took place between her,
Justice Butts, Bill Canary, and Rob Riley at 10:52 am on November 1 8, 2002, for 1 1
2
16
minvtes. I did not leave the presence of Justice Butts and Rob Riley for more than a few
minutes at any point from the time 1 arrived at Rob’s office until we left for the victory
speech at the end of the day. I do not believe that 1 was out of Justice Butts’ and Rob
Riley’s presence for 1 1 consecutive minutes at or around 10:52 a.m. that day. If there
had been a conference call conducted by speaker phone in Rob’s office as described by
Ms. Simpson, I believe that I would have heard it. I do not recall any such call taking
place while I was there. In addition, Bill Canary was not at Rob’s office on November
1 8, 2002, nor do I recall that he participated in any conference call involving me at any
point during the post-election controversy.
The notion that Governor Siegelman would have conceded the governorship
because a photo existed of a Democratic operative planting Riley signs at a Ku Klux Klan
rally in Scottsboro, Alabama after the election strikes me as absurd. Indeed, the first time
I ever recall hearing about Riley signs at a Ku Klux Klan rally in Scottsboro, Alabama
was when 1 read a press account of Ms. Simpson’s affidavit.
I was with Justice Butts on November 1 8 virtually continuously from
approximately 9:00 a.ra. until Governor-elect Riley’s victory speech, and I am unaware
of him having had any meeting or phone call with Governor Siegelman or any
representative of Governor Siegelman to discuss a concession.
During the post-election legal controversy, there were several lawyers around the
state who served as co-counsel for the Riley campaign on various post-election legal
matters. Jill Simpson was not one of those lawyers. In fact, the first time I ever recall
hearing Ms. Simpson’s name was when 1 read an account of her affidavit on the New
York Times website.
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17
Mr. Forbes. I also ask unanimous consent that the statement of
Governor Riley’s election attorney he submitted for the record.
Mr. Scott. Without objection, so ordered.
[The prepared statement of Mr. Butts follows:]
TERRY LUCAS BUTTS
ALABAMA SUPREME COURT JUSTICE (RET.)
ATTORNEY AT LAW
Mailing Addtsas 76 South Glen%v(K)d Avenue Telephone: {334) 335-2262
P.O. Drawer 272 Lgveme. Alabama 36049
Luveme, Alabama 36049 Facsimjle: (334) 335-2214
Email: tlucasbLitts@yahoo.com
STATEMENT OF TERRY LUCAS BUTTS
My name is Teny Lucas Butts. I received my law degree in 1968 from the University of
Alabama Law School Following law school, 1 practiced law in Elba, Alabania, for eight years. I
then became a Circuit Court Judge, ultimately serving some 23 ‘A yesxs as a judge, before rctmng
from the Alabama Supreme Court in 1998 to run as the Democratic nominee for Attorney
General of Alabama against then apimmted incumbent Attorney General Bill Pryor. After losing
the 1998 race to Attorney General Pryor by three-tenths of one percent, I returned to the active
practice of law, practicing in Troy, Alabania, in oltimately an eight person law firm. I left this
firm and practice in 2005, letuming to my home town of Luveme, Alabama, where I resided, to
open my separate law practice, ydiicb continues today.
Since leaving the judicial beach, among my clients have been Governor Bob Riley, Former
Alabama Chief Justice Roy Moore, and Former CEO of HcallhSonth Corporation, Richard
Scrushy, in respective matters.
After the November 2002 general election in Alabama, then challenger Bob Riley prevailed over
then incumbent Governor Don Siegelman by some 3,1 00 votes. Governor Siegelman
immediatdy began a legal challenge to obtain a recotint of the votes. Along with Attorney Mall
Lemblce of the firm Bradley/Arant in Birmingham, I was employed by Governor-elect Bob Riley
to resist the recount challenge.
For nearly two weeks, co-counsel Matt Letnbke and I (along with other attorneys who assisted
locally in varions counties, but those attorneys did not include Dana JiH Simpson) “punched and
counter-punched” alt over the State, with Governor Siegelman’s attorneys Joe Espy and Bobby
Segall, both of Montgomery, and “Boots” Gale of Birmingham, as to Governor Siegelman’s
efforts to obtain vote recounts and our efforts to block any recounts.
t lake up Mrs. Simpson’s allegations involving me as follows:
1 . Ms, Simpson alleges a conference call occurring on November ! S, 2002. As f recall that
day. Attorney Matt Lembke and I arrived within minutes of each other at approximately
9:00 am, at Rob Riley’s law office in Birmingham. Rob Riley’s office had come to be
headquarters for the election recount challenges.
On November 18, 2002, Matt and I spent the entire morning working togelher with Rob
Riley in Rob’s law office. As I reerdi, sometime in thcaflcrnoon, Tob)- Roth (T hclio rc)
stuc’: his bead in where we were all working, advitdng t.hat a G::]' hr.d Just br.r-.
18
&om someone in Governor Siegelman’s campaign inquiring as to when Governor
Siegelman could speak by phone with Governor Riley.
Durimi the afternoon Matt and I were in Rob Riley’s law office with Governor Riley.
Rob Mev Steve Windora, Toby Roth, and others standing in the doorway ^n Ma
^tlTuni chlfby Governor Riley and w^tedwithhimfo^
^^medmelt^afler, mile I could notbe^ Governor Siegel’s end ofteer^l, I
r^nld hear Governor Riley’s. The two men had a very amicable and fiiendly
comLsation. When Governor Riley hung up the phone, he stood up Matt ^
^^d Governor Riley put an arm around each of us. hugging us to him. and said.^e
^ngte^rkob ffitey hadacamerarmd snapped aphoto, 'niem were then hugs and
i...,.rt»haVps all around and that was the end of it.
Later after Governor Siegelman conceded publicly, we aU rode wift Gwernor Ril^ to
I ««dl we were all exhausted because there had been some of
around the clock working on the various pending lawsuits and
do not believe not do 1 recall, any conference caU occumng with Ms. Simpson. In tact,
S^e2rrlcountcont;ovLsy.MattI^hkeandI^^^^^
the issues, including conference calls, unless we did it together
oonsultation/concurrence by both of us on any matter, as
Further, on November 1 8, 2002, Matt and I were never outside of each other presence
for any length of time for any phone conferences.
2 AS to Ms. Simpson’s allegations about concern over a Ku Klux KJan ^y “’'^8
‘ ^paign sign^ of Governor Riley, I simply do not know -l^befo^
good S^em “damn" or a “hoot-in-heU’’ about what the KKK thinks, either before,
d^g, or after an election on any issue. Certainly this would be pafficnlariy true as to
the placing of anyone’s campmgn signs at aXlan rally an election.
3 As to Ms Simpson’s aUegarions concerning roe approaclring wther Governor Siegelman
^ soiTof to “Campaign people’’ about Governor Siegelman conceding the elation ^d
in return the KKK a^gations. as well as that any Federal invcstigation/prosecution would
end, that simply did not happen,
1 could not ethically {and did not) approach another attom^s client (m this mstancc
GowmmSiegeMnordidlcoritaetanyofGovernor Siege’s W
Adffitionally, I would have no authority to prevent, stop, or ^ any ^
investigation/proseculion of anyone. TTiatkind of authon^ toves o^y from State or
FedetdAttor^ey Generals. Slate District Attorneys. Umted Smes
United States’ Justice Department, none of whom was I m ront^ wfo concerning any
investigation/prosecution of Governor Siegelman as alleged b>' Ms. Simpson.
4 Along with other co-counsel. I did help represent former He^*Soufo CEO Rtel^
Sciushy in the Middle District Federal Court of Alabama m 2006, ^ about
Govenmr Don Siegelman was a co-defendant. WMle there is much that can he said about
2
19
(hat trial, I continue to believe that both Richard Scmshy and Don Siegelman were
erroneously convicted and that their respective convictions should be reversed on appeal
for many trial errors. However, I did not (as Ms. Simpson alleges) “go back and tell the
Governor things” about Mr. Scrushy’s case. Neither did I discuss Mr. Scrushy’s case
with Rob Riley. Again, these allegations by Ms. Simpson did not happen.
Additionally, there is just simply no conflict of interest on my part in having t« 5 )fesented
Mr. Sorushy, as Ms. Simpson’s allegatKMis on that issue are not true. In fact, the first
time 1 ever heard of Ms. Simpson and/or her allegalions was in May 2007 when I received
media calls about her allegations.
5. Finally, among other general matters that I recall on November 1 8, 2002, co-counsel Matt
Lembke, Rob Riley, and I were together in Rob’s office on the mentioned date. As I
recall, none of us were ever outside each other’ s presence on that day for any length of
time, so if a conference call with Ms. Simpson occurred as she alleges, I am confident we
would remember it, particularly, in li^l of the commems she alleges. Again, 1 neither
recall any such call, nor do I believe any such call/conversation as alleged ever took
place.
Further, Bill Canary was not present with us on November 18, 2002, nor do I ever recall
any conference call with him. In fact, to my knowledge and recall, I have never had a
phone call with Mr. Canary.
Reiterating, the allegations made by Ms. Simpson involving me are simply not true.
While Ms. Simpson herself may not personally be in doubt, however, with no disrespect
intended, I certainly believe her to be in error.
Tefiy Lucas’feilts
SWORN TO and subscribed before me this
day of October, 2007.
NotaryFublic A
I MyCotlB.Exp. I
My Commission Expires: s
3
20
Mr. Forbes. The Judiciary Committee staff questioned Simpson
for hours about her allegation. Her credibility was shredded beyond
repair. Her statements during the interview were misleading and
unbelievable. In my view, the Committee should consider referring
her to the Justice Department for further examination. That is why
the majority did not want her here today.
Simpson swore out in affidavit in May 2007 about an alleged
telephone conversation in November 2002, a conversation that she
did not memorialize, nor tell anyone about until years later. In her
affidavit, she alleged that Siegelman conceded the election because
of a controversy surrounding a KKK rally. When interviewed,
Simpson changed her story. She claimed for the first time that
Siegelman had also conceded the election after receiving assur-
ances that he would not be prosecuted. Continuing her fabrication,
Simpson alleged for the first time in her interview two additional
conversations regarding Siegelman’s concession and prosecution.
Finally, in her effort to tie Karl Rove to the Siegelman prosecu-
tion, Simpson identified the name Karl in an e-mail discussing a
FEMA contract as Karl Rove. We have since learned that the Karl
referred to on the e-mail is Atlanta attorney Karl Dix, contrary to
Simpson’s assertion. That is why the majority did not want her
here today.
Because the majority has not called Simpson today, I ask unani-
mous consent to submit the transcript of her September 14, 2007,
interview with the Judiciary Committee staff.
Mr. Scott. Without objection, so ordered.
[The information referred to follows:]
21
1
RPTS McKenzie
DCMN NORMAN
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY,
WASHINGTON, D.C.
INTERVIEW OF: DANA JILL SIMPSON
Friday, September 14, 2007
Washington, D.C.
The interview in the above matter was held at Room
2138, Rayburn House Building, commencing at 12:37 p.m.
22
2
Appearances :
For THE JUDICIARY COMMITTEE:
SAM BRODERICK-SOKOL, MAJORITY COUNSEL
ROBERT REED, OVERSIGHT COUNSEL
CAROLINE LYNCH, MINORITY COUNSEL, CRIME SUBCOMMITTEE
DANIEL M, FLORES, MINORITY COUNSEL
MATT LANDOLI, LEGISLATIVE DIRECTOR AND COUNSEL, CONGRESSMAN
CANNON'S OFFICE
For DANA JILL SIMPSON:
PRISCILLA BLACK DUNCAN, ESQ.
P.B. Duncan & Associates, L.L.C.
472 S. Lawrence Street, Suite 204
Montgomery, AL 36104
JOSEPH E. SANDLER, ESQ.
SANDLER, REIFF & YOUNG, P.C.
50 E. Street, S.E, Suite 300
Washington, DC 20003
23
3
Mr. Erode rick- Sokol , My name is Sam Sokol. I am
counsel for the House of Representatives Judiciary Committee
for the majority staff. I want to thank you very much,
Ms. Simpson, for voluntarily coming up today to share what
you know. I've just introduced myself. Why don't I ask the
others here all just to identify themselves for the record
as we get started.
Mr. Reed . Robert Reed, Oversight Counsel, Judiciary
Committee .
Ms. Lynch . Caroline Lynch, Crime Subcommittee, counsel
for the minority.
Ms. Duncan . Priscilla Black Duncan, counsel for Dana
Jill Simpson.
Mr. Sandler . Joe Sandler, counsel for Ms. Simpson.
Ms. Simpson . I guess Jill Simpson.
Mr. Broderick-Sokol . You will have another chance to
do that in a minute.
Mr. Landoli . Matt Landoli, Congressman Cannon's
office .
Mr. Broderick-Sokol . Well, we'll try and proceed
quickly, and I hope we won't take too long today. If you
need a break at any time, just speak up and I'm sure we can
accommodate that . The procedures or the few agreements that
there are governing this voluntary interview are set forth
24
4
in exchange of -- well, a letter and an e-mail. And I think
I'll mark those for the record and then go over them just
briefly as we start.
25
5
[Simpson Exhibit Nos. 1 and 2
were marked for identification.]
Mr. Broderick-Sokol . Exhibit 1 is a letter from
Chairman John Conyers to Priscilla Duncan, dated September
6, 2007, and Exhibit 2 is going to be an e-mail from Crystal
Jezierski to an e-mail address H-E-L-Z-P-H-A-R, which is I
believe is Ms. Duncan's e-mail, on September 14, 2007.
And the few agreements that there are, basically you
will be asked questions today by just two people, myself and
counsel for the minority, Ms. Lynch. You'll have an
opportunity to review the transcript that's being made and
correct any errors in it, and you'll receive a copy of that
transcript when it's final. We all agree to hold the
transcript confidential and it will only be released by a
decision by Chairman Conyers after consulting with both the
minority and with you and your counsel.
Your interview today will be under oath. We'll
administer the oath in just one minute. So I'm sure you
understand that means you'll be subject to the penalty of
perjury. I also want to make sure that you and your counsel
understand that an interview given to congressional
investigators in an authorized investigation like this is
subject to section 1001 of Title 18 of the United States
Code, which makes it a crime to make any m.aterially false.
26
6
fictitious or fraudulent statement or representation in such
an authorized investigation.
Ms. Simpson. I understand that.
Mr. Broderick'Sokol . Okay. Now I'd like to ask the
court reporter to administer the oath.
THEREUPON,
DANA JILL SIMPSON,
a witness, was called for examination, and after having been
first duly sworn, was examined and testified as follows:
EXAMINATION
BY MR. BRODERICK-SOKOL:
Q Just to start with a few personal questions, can you
statement your full name for the record?
A Dana Jill Simpson.
Q And you normally go by Jill, is that correct?
A That is correct.
Q Okay. And what is your current place of employment?
A I work for myself. I'm an attorney in Rainsville,
Alabama .
Q And how long have you had your own practice?
A Since May of '89.
Q Okay. Where did you attend college?
A The University of Alabama.
Q And law school?
A University of Alabama.
27
7
Q And when did you graduate?
A In '88.
Q Can you just run quickly through the jobs that
you've had since law school?
A I've really only had one other job. I worked for
Bill Veitch when I first got out of law school, but I pretty
much went and set up my own practice shortly after I passed
the bar. And that's it.
Q Okay. And were you working as an attorney for
Mr. Veitch?
A Yes. Well, actually, yeah, I worked for a short
time for him as an attorney, but I worked, you know, as a
research person for him before I passed the bar.
Q Okay. Great. Now I understand from talking to you
and just learning about the matter, that you've had some
involvement with politics. Is it correct as it's been
reported that you're a Republican?
A It is correct.
Q And you have done work on or in support of political
campaigns from time to time?
A That is correct.
Q Can you just identify some of the political
campaigns that you've worked on over the years?
A Okay. I guess I would start around 1979 or '80. My
sister worked at George Bush Senior's bank in Houston at the
28
8
River Oaks Bank i Trust and so she recruited me to help. I
mean -- and I don't know how much help, I mean, but I handed
out stuff, put up signs and —
Q And I was raising my hand. That's why the witness
stopped.
Just to jump in, just to really run through the
campaigns. That would probably do it I think.
A Well, I helped with that. He actually came to my
community at that time and spoke. So I helped with that.
Then I helped with Ronald Reagan's campaigns when I got
in college. And I then got out of law school and there's a
period of time where I didn't work for a small short period
of time. Then I got back active because my boss Clyde
Traylor was good friends — I had worked when I was and I
guess I should say that. When I was in law school -- you
asked me after law school. But when I was in law school I
worked for Lee Clyde Traylor. He is a Republican in our
area. By the time I got out of law school, Lee Clyde had
gotten appointed to be a judge at that time. He was real
good friends with Perry Hooper. In fact, they claimed they
were only one of the three Republican lawyers in the State
at that time -- him and Bob French, who was another lawyer
in my community, which I don't believe they were actually
the only three Republican lawyers, but that's what they
claimed. But they recruited me to help with Mr. Perry
29
9
Hooper's campaign. I did a little bit of work on that.
Nothing on a formal basis . Then Perry Hooper actually came
to our community and we threw him a big celebration
afterwards .
And then I worked for the Rileys. And when I say
"worked," it was just volunteer stuff that I did. And most
it -- I was not one that attended meetings and things of
that nature. Rob was a friend and would ask me to do
specific things.
Mr. Broderick-Sokol . Let me interrupt you for one
second. We've had another person come into the room. Would
you identify yourself just for the record
Mr. Flores . Daniel Flores with the House Judiciary
Republicans .
The Witness . And Rob would ask me to do specific
things, and I was up here in Washington doing some stuff
sporadically, and additionally --
BY MR. BRODERICK-SOKOL:
Q Any other campaigns?
A I helped Roy Moore when he was running for the
Supreme Court judge, and then I helped with Roy's campaign
in the spring of 2006 for the gubernatorial campaign.
Q Okay. That's great.
A And then I helped some — I had started back helping
with Governor Riley's. I had cailed Toby Roth — and I
30
10
think it was August — to help with Governor Riley on some
stuff, but in the office. And then from there — and I sent
that letter that I've told you about that, so I mean
Q Well just to jump in. We'll have a chance to walk
through all the events relevant to the Siegelman and Scrushy
matters and why we're here today.
A Really, I guess it was a letter.
Mr. Sandler . Just answer the questions.
BY MR. BRODERICK-SOKOL:
Q It can be a long day in these interviews, and we're
all going to try to keep it — do our best to keep it as
short as we can. So I'm going to —
A I want to say one other thing. And then I worked in
George Bush's campaigns just as far as helping with my
general way I help, which is putting up signs and things of
that nature.
Q Yes. And did you work for both of his Presidential
campaigns?
A I did. But I was more active in the first than the
second because, I explained to you, that I had lost the baby
in the second, so that year --
Q Sure. As we talk -- and I will just say that we
have spoken before. I interviewed you at some length, as I
think everyone here is familiar. But if you refer to things
that you may have said to me, it may make for a confusing
31
11
record because not everyone here knows. I mean — I may not
know what you're referring to. So it will probably be more
constructive, one, if you stick, if you can, to the
information that I'm asking you directly about in the
questions, and if you are thinking of things that you know
we have talked about, to just recite them.
A Okay. That will be fine.
Q i think the record will be shorter and more
understandable for future readers that way.
Did you ever work on any campaign of Don Siegelman?
A Never.
Q Okay. I do want to turn now to the 2002 Riley
Siegelman campaign and the events that you ultimately
described in the affidavit that you signed on May 21. You
did some work for the Riley campaign, as you said before.
Can you describe some of the work that you did for that
campaign?
A I would talk to Rob directly about strategy.
Q And that's Rob Riley?
A That is correct.
Q Okay. what else?
A I would help if he asked me to help on specific
things. I was not a phone worker or anything of that
nature. I did help get signs out in the community. He
would ask me -- he would hear that Don was coming to the
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12
area of where I was located at.
Q In what area was that?
A DeKalb and Jackson County. I lived -- at that point
I had a house in both DeKalb and Jackson County, on the
lake .
Ms. Lynch. I'm sorry. Could you spell DeKalb for me?
A D-E capital K-A-L-B.
Ms. Lynch . Thank you very much.
The Witness. He would ask me to try to follow Don
Siegelman to try to obtain some pictures.
Q And did you do that? Did you follow Don Siegelman
for some time when he visited your area?
A I would traditionally -- I guess you could say I
followed him to specific events.
Q And did you ever formally volunteer for the Riley
campaign? Did you fill out any volunteer registration forms
or send them any -- you know, sign up on a list?
A No .
Q Most of your contact was with Rob Riley directly?
A That is correct.
Q And that's the son of Bob Riley, who was the
candidate for Governor?
A That is correct.
Q How did you know Rob Riley?
A I knew him from college at the University of
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13
Alabama -
Q Now I would like to get to the telephone
conversation that you described in your affidavit. I
understand that at some point you were asked to find out why
Riley campaign signs were being taken down or disappearing
in in your area. Who asked you to do that?
A Rob.
Q Did he ask you that over the phone, or was that in
person?
A I believe he asked me over the phone.
Q And what did you do to figure that out?
A Well, he had told me that he thought campaign signs
was missing, was coming up missing. And he was suspicious
that Parker Edmiston might be involved.
Q And who was Parker Edmiston?
A He was an attorney in Jackson County.
Q Okay. And did you know Mr. Edmiston?
A Yes .
Q Okay. And at some point did you get the idea that
these signs were to be put up at a Ku Klux Klan rally?
A I got the idea because Rob told me that.
Q And did you go to that rally?
A I did.
Q And what did you see?
A When I got there, I saw a bunch of folks there,
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14
unusual bunch of folks, actually, but if you've seen the
video -- but I just went to watch and see what was
happening .
Q Did you see Mr. Edmiston?
A I did. He appeared.
Q And what did he do?
A I think the first time that he appeared — because
he made several trips, and the video doesn't show all of it.
But the first time that he appeared, I saw him with -- I
don't know, five or six, seven, eight signs, something like
that. I'm not exactly sure how many signs he had.
Q Riley signs?
A Riley signs, which was surprising.
Q He was a Democrat?
A He was a Democrat.
Q Okay. And did you see him put some of those up?
A I did. I watched him go around the gazebo.
Q Okay. Now at some point, as you describe in your
affidavit, you end up on a telephone call, which at least in
part discussed those signs?
A That is correct.
Q And why don't you tell me how you came to be on that
call ?
A Okay. Here's the deal. I went to the rally on the
16th and I took the pictures. I was supposed to call Rob
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15
first thing on Monday morning about those pictures because
they had somehow gotten information Parker's going to do it.
They wanted to know first thing on Monday morning about
those pictures.
Q Just to interrupt, I think I didn't ask you this
before. But the rally was over the weekend?
A It was on a Saturday, yes. It was on the 16th —
Q Go ahead. Sorry.
A -- of November.
Anyway, I decided over the weekend that I would
confront Parker about those pictures before I called Rob.
And I had a court case that morning anyway, over in Jackson
County I believe, because I think I had something over
there. And so I went over to the courthouse, and I hunted
Parker. And I believe it was a court case. I may have been
getting a judge to sign an order, I'm not certain, but I had
something to do in Jackson County. I did my business and 1
remember going in the clerk's office and I asked them if
they had seen Parker, and they pretty much told me that
Parker had already been in there showing them the pictures.
And I thought, oh, no. So --
Q Okay. And did you talk to Parker?
A I did. I finally located Parker in the courthouse.
He had a group of attorneys that were surrounding them —
him. He was telling a story about the pictures, and he was
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16
pretty much holding court in his own little — you know,
about -- and was providing a most entertaining story.
Q And the pictures showed a Riley sign up at a Klan
rally?
A And Parker was contending that Bob Riley had a Klan
rally .
Q Okay. And how did you get from there to the phone
call with Rob Riley and others?
A Well, at that point I asked Parker a question. I
said. What are you doing with those pictures? Because I —
and he, of course, didn't know. But I wanted to know if he
had just showed them there. But he had a group of folks. I
said. What are you going to do with those pictures? And he
said that he was going -- that they were already on the Web
site, that he had put them up -- he didn't say he put them
up on the Web site. He said that they had been put up on a
Web site. I want to make sure I'm specific on that. But
that they were on a Web site. But I don't think he said he
did it. I think he just said they had put them up on a Web
site. And I realized at that point that I probably just
needed to go ahead and call Rob because he had already got
them up on a Web site.
So I asked Parker if I could have a couple of -- I told
him I was going back to DeKalb County. I had a couple of
people I would like to show. Could I have a couple of his
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17
pictures, too? So he gave me a couple of his pictures also.
Q Okay. You said, talking about Parker, that he
didn't know. Did you mean that he didn't know that you had
seen him put up the signs?
A He had no idea that I had seen him put up the signs,
and I did not enlighten him. I just listened to his story.
Q I understand. So you called --
A He thought I was going to spread the news when I
took the pictures.
Q Right. So you called Rob?
A I go out to my car and called Rob.
Q From your cell phone?
A From my cell phone.
Q And did you reach him directly?
A I did. And I think they were -- because he told me,
we've been waiting for your call.
Q And who was "we"?
A He had people in his office, some of which are
unidentifiable .
Q To you?
A Right. And so he just said in plural, we have been
waiting. And I don't know who he was talking about, the
"we" at that time.
Q When you spoke to Rob, were there other people on
the line?
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18
A Yes. He got Bill Canary on the line and Terry Butts
on the line. And I believe that the Governor was there
also, but he didn't say anything. And that's what I've
always told in my story. But I can't say, because there was
some mention that somebody was in a parking lot and that
they would — and I don't know where that parking lot I
don't know if it was Rob's parking lot or where it was. But
after we started talking, they all got a real hoot and a
howl about the Democrat. And there was more people laughing
and cutting up in the background than was on the line, so to
speak.
Q Okay. Had you been on a call with Bill Canary
before?
A Rob had called me about those pictures and about
that Klan rally. And he said that that was Bill Canary that
was with him, asking me to go to take the pictures of the
Klan rally.
Q He called, and someone else was on the line that Rob
identified as Bill Canary?
A Right.
Q And this was before you went to the — this was when
they were asking you to go?
A Right.
Q Okay. Had you been on a call with Terry Butts
before?
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19
A No.
Q So did he introduce himself or did Rob introduce
him, if you remember?
A I just remember that they at one point put me on a
speaker phone, and I could hear a roomful of people and they
said, this is Terry Butts or Terry identified him. 1 can't
say who identified him, whether he did it or they did it,
but somebody identified that that speaker was Terry Butts.
Q Okay. And part of this call, as you have described,
was your describing the Klan rally, your encounter with
Parker Edmiston. You also end up, as you describe in your
affidavit, talking about Governor Siegelman and whether or
not he would concede?
A That is correct.
Q Okay. Why don't you describe what was said about
whether or not Don Siegelman would concede the Governor's
race?
A Terry Butts said in the conversation that he
believed that he could confront Don Siegelman regarding the
signs and get him to concede the election. He believed that
Don would concede over that by the 10:00 news so as to avoid
any embarrassment. And Terry also said — and it's not in
my affidavit, because you can't put every single solitary
word. Terry said, you know, I knew Don back when I was a
Democrat. Terry was the one who was a Democrat and then he
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20
flipped to being a Republican. So he said that he -- he
claimed that he'd be able to assure Don that this would all
be over if he would just concede. Pretty much. And I mean,
that's the general statements. I mean, he made a couple of
statements, but that's the general premise of it. I can't
say that that is verbatim, but that's the gist of the
conversation.
Q Let me stop you for a moment. You are looking at
something now that I have not identified as an exhibit.
A That's my affidavit. I just wanted it in front of
me in case y'all referenced it or whatever.
Q Sure. We'll be marking it as an affidavit. If you
are more comfortable with it there, that's your choice. My
preference would be --
Ms. Lynch. Could we mark it now if she's going to be
looking at it?
Ms. Simpson. If they want to look, I figured they
would be referencing it, paragraph —
Q Jill, let's go ahead and mark that as an exhibit.
I'm going to ask some questions, and I want you to search
your recollections and think of everything you recall. I
understand that drafting the affidavit was a particular act,
and we'll discuss that and things you included, things you
may not have included. But we're also interested in the
full story of what you recall, sitting here right now. So
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21
this is going to be Exhibit 3.
[Simpson Exhibit No. 3
was marked for identification.]
BY MR. BRODERICK-SOKOL:
Q Other than the markings at the bottom right, which
are numberings that we applied to all the documents you have
produced to us, and they start at Simpson 1 and count up
sequentially through the documents we've received, this is a
copy of the affidavit that you ultimately actually are
describing some of the events that we are discussing?
A That's correct.
Ms. Lynch . I hate to interrupt. But I would like to
go on record as saying if there ' s any way to obtain a copy
of this affidavit that has the legible signature and date.
I think if you take a look at it, you will notice that the
copies that we have, we can faintly make out a signature,
but cannot make out a date or the name of a notary and all.
So I guess the question would be either to Ms. Simpson or
counsel .
Mr. Broderick-Sokol . Sure. One thing I can do, when
you produced — could we go off the record?
[Discussion off record.]
Mr. Broderick-Sokol . We briefly discussed the
documents that Ms. Simpson had produced off the record, and
I noted that the version she sent up electronically,
42
22
including the affidavit that we have marked as an exhibit,
have spots that are faint or more difficult to read. And we
have better to read copies up here in the committee already
of all the documents, I believe all of them.
BY MR. BRODERICK-SOKOL:
Q So to prooeed, we were discussing the call, and I
think it -- can you read back the last answer?
[The reporter read back the question.]
Ms. Simpson. I think my last sentence was that Don
Terry claimed that he would be able to assure Don that it
would all be over if he conceded. And I believe that was
what my last sentence was, prior to us going on this
venture?
BY MR. BRODERICK-SOKOL:
Q Okay. And did someone express a concern that the
picture should be made public anyhow to prevent having an
impact on Mr. Siegelman's political future?
A They did. And that was Rob Riley.
Q Okay. And what did he say about that?
A He said that he felt they should go to the press
with the pictures, but there was some disagreement about
that .
Q Okay. And what was that disagreement?
A Bill Canary said that in order, basically, to get
this over with, that not to worry, that Don -- that his
43
23
girls would get him. Let's just go ahead and get this
election contest over with, I guess would be the best way,
you know. Because Rob kept saying, I want Don Siegelman not
to run. They were talking over each other in that
particular -- I don't want to face — we don't want to face
Don in running again in the future.
And Bill said -- and that part didn't exactly make it
into my affidavit. But Bill said, "Rob, don't worry. My
girls are getting him, will take care of him." But he said,
"Let's get this election contest behind us."
Q I understand.
A And Rob was going, well, I think we need to go to
the press. So there was some kind of conversation about
that .
Q As you've said. And by him. Bill Canary meant Don
Siegelman; that's what you understood?
A Yes. He said not to worry about Don Siegelman; you
know what I mean?
Q Yes .
A That his girls would take care of him.
Q And did you know who Bill Canary's girls were or
what he meant by that?
A I was not sure. I knew at some point Rob had told
me that his wife — but on that particular day, I asked.
And that's not in here because -- but the next sentence is
44
24
of what pretty much Bill said, because I was like. Who s
your girls? And then
Q I'm sorry. So you asked the question, you asked
Bill Canary who his girls were?
A I just said. Who's his girls? For the general
because there was a room, and there was people on the line.
And I'm not sure how they were all added, but I know that
there was a speaker phone and we added some people into the
conversation. And where their locations were at, I'm not
certain .
Q And so what was the answer to that question?
A He told me somebody — and I believe it was Bill
Canary — identified, as I recall, saying Leura's my wife,
Jill. She works for the middle district of and then
Alice Martin works for the northern district. And I think
there was some mention also of being a USA attorney. I know
there was some mention of being a USA attorney, but I think
there was some mention that Bill had helped Leura — I mean
Alice-- run for office before in that
Q Before Alice Martin was the U.S. attorney, she ran
for political office?
A Yes. Because I'm like, well, what's y'all's
connection to Alice Martin, or something like that, because
they named her. But then I asked.
Q Okay. And what happened next?
45
25
A Rob was still very concerned. Rob really believed
that they should tell the press. And what you need to
understand, the press -- from what I understood that day,
from what they told me, is they were already calling about
that on the Web site. There's a whole lot of people in
Alabama that saw that, the photos on the Web site. It was
making --
Q The photos of the Klan rally?
A Uh-huh. So they were already getting calls, and Rob
thought they would to go ahead and address it. Canary --
and this is general, what I'm saying. But Canary didn't --
my interpretation was he did not really think that they
should go to the press; that they just needed to use it and
let Terry go see him and get Don to concede.
Q Okay. And did Rob ask something about if they were
sure that Bill Canary's girls could take care of Don
Siegelman?
A Yes, they did.
Q Can you describe that part of the conversation?
A Well, what he said -- Bill Canary told him not to
worry. He had already got it taken care of with Karl. And
that Karl had spoken to the Justice Department and the
Justice Department was already pursuing Don Siegelman.
Q And did you know who he meant by Karl?
A I did.
46
26
Q Who did you think he meant?
A Karl Rove.
Q Did he ever say Karl Rove?
A No. But I knew from conversations that I had had
with Rob that Bill Canary was very connected to Karl Rove.
Additionally, there was some talk -- and that's not in my
affidavit — about Karl had -- about Washington; that Karl
had it taken care of in Washington. I mean, as I said, I
couldn't put everything down. I put the best I could, but I
didn't write every single word that occurred in that. So I
understood that to be — and the only Karl I knew involved
in Rob's conversation was Karl Rove. So that's how I
understood it.
Q And what was the additional talk that you say isn't
reflected here about Washington?
A Well, the additional part of that was, as I
understood, Karl had been over to the Justice Department.
Q There is some reference — he had physically gone
there?
A That's what I understood.
Q How did you know that?
A I think they mentioned it . They said he had spoke
to the Justice Department. And somebody in the room said.
When did he? Or, What happened exactly? And he sard, Oh,
he went over there and talked to him in Washington. So I
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27
mean, there was no question in my mind.
Q Did they say who he talked to?
A No. And I have no idea.
Q And as you were hearing the conversation and
understanding it at the time, leaving aside the precise
words that you used in your affidavit, but did you
understand them to mean that Karl Rove was encouraging the
prosecution?
A What I understood, or what I believed Mr. Canary to
be saying, was that he had had this ongoing conversation
with Karl Rove about Don Siegelman, and that Don Siegelman
was a thorn to them and basically he was going to -- he had
been talking with Rove. Rove had been talking with the
Justice Department, and they were pursuing Don Siegelman as
a result of Rove talking to the Justice Department at the
request of Bill Canary.
Q Did anyone mention, or did you have an understanding
as to when Karl Rove had spoken to the Justice Department?
A It had already happened. It was not something that
Bill Canary was promising. I understood that Bill Canary —
because Rob kept saying. Well, I want to go to the press.
And Bill said, Look, I know pretty much all about this. The
Justice Department's already pursuing Karl. And that was
the general gist of it. Not Karl, Don. And that Rove
involved, and that they had been working on it for some
was
48
28
time, and I got the impression it had been going on for some
time .
Q Okay. How did that call — well, was there anything
further said about Don Siegelman, about strike that.
Was there anything further said about the Justice
Department or possible criminal prosecution of Don Siegelman
on that call that you can remember?
A There were people chattering in the background, but
I can't say what they were saying. They had discussions
going on over there, too. So with that, I can t say
specifics on what they said.
Q Okay. And how did that call end?
A They were to call me back. I was going to have to
go to Fort Payne to see a circuit judge, and they were going
to send somebody, and they were going to have to let me know
how they were sending somebody to get the pictures . And
they didn't have that worked out in their head at that time.
And then I -- so --
Ms. Lynch . Can we stop?
[Discussion off record.]
BY MR. BRODERICK-SOKOL:
Q Did you ultimately provide the pictures to someone
from the Riley campaign?
A I did.
Q And did Don Siegelman ultimately concede?
49
29
A He did.
Q Okay. And did he concede that very day?
A He conceded that very day.
Q I'm going to mark a couple more documents now. I
think this is going to be Simpson 4 .
[Simpson Exhibit No. 4
was marked for identification.]
Mr. Broderick-Sokol . This is a 2-page document of
telephone records that Ms. Simpson has provided to the
committee. And the first page is marked Simpson 490, and
the second page is marked Simpson 489.
BY MR. BRODERICK-SOKOL:
Q On the top of the first page there's a number —
well, what is this first page?
A This first page is my Farmers wireless cellular
bill .
Q Is your cell phone number somewhere on this page?
A Yes. It's the 899-3600. I have multiple cell
phones at any given time, depending on — because I
represent different folks, and some of them even provide me
a phone .
But I also have 3601 and 3606. And I sometimes am
charging one. I'm never without a cell phone. So --
Q Okay. And on the bottom of this page, there's —
well, is the call that you describe with Rob Riley and Bill
50
30
Canary and Terry Butts listed on this page?
A Yes. It's the 11:18.
Q So there's a call at the very bottom dated November
18 at 10:52 a .m. ?
A That is correct.
Q That call lasted for 11 minutes?
A Right.
Q Okay.
A And then you've got another page attached to that.
Are you asking me about that page too?
Q I'm not asking you about the next page right now.
A Okay.
Q I’m going to -- hold onto that one because we're
going to go back to it.
A That's what I'm trying to figure out, what I need to
do with it.
Q The next document is a -- this is a stack of
documents that you also provided to the committee. The top
one is Simpson 558. They are not in Bates order.
[Simpson Exhibit No. 5
was marked for identification.]
BY MR. BRODERICK-SOKOL:
Q I will describe that these are a selection of
documents that I have pulled from what you provided us that
are letters between you and Rob Riley and various clients or
51
31
other individuals. That is how I understood them.
Is that an accurate description of what these documents
are?
A It is. And this is not all-inclusive. I asked my
secretary to pull out of a couple of drawers, documents
because I mean we've got drawers full of them. But I just
asked her to pull out a couple, since he had claimed he
didn't know me basically in a newspaper article.
Q So the record is clear, I did not pull I did not
pull all of the documents that you had sent as examples.
And your testimony just now was that you have even more that
you did not even send in to the committee because you were
just picking samples?
A And this is — basically it looks like what -- I
told my secretary when she pulled from the drawers, I don't
even think she pulled from - I think if you could see the
blacked-in stuff, you would see it's just a couple letters
of the alphabet. I just told her to pick any drawers,
closed drawers. We put our files in the drawers at the
office. So she picked those, and I told her to try to get a
couple from 1998, '99, 2000, 2001, 2002 and so forth,
because he had done that article that suggests he didn't
really see me any during that time.
Q Okay. And the earliest one we had in this group I
have selected is June 1998, and they run through 2004.
Did
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32
you have business dealings of this kind with him before '98?
A Sometime after I did my TWA 800 case, he got started
to get me to do cases with him, and so — because he
had heard I had some big cases that I had settled, and he
was in a large firm in Birmingham, and I had been referring
them out. I can't say what year I started with him. I just
had my secretary pull out of two drawers, but it was
sometime after the TWA 800 disaster, because I did a case
involving that.
Q Okay.
A And he heard about that. And that's kind of how he
started pursuing me to be a referring attorney.
Q Okay. I just want to look at a few pages of Exhibit
5. The first page, I guess there's a telephone number for
Rob Riley's office in the letterhead, 205-870-9866. Do you
see that?
A That is correct.
Q Do you want to go back to Exhibit 4?
A Yes .
Q Just so the record's clear, what is the phone number
for the November 18 call?
A It is 205-870-9866.
Q Okay. And does that number — why don't you turn to
the second page of Exhibit 4, the phone records.
A Yes .
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33
Q Well, what is this page?
A This page — why did I offer it? Is that what you
mean?
Q Well I'm asking what it is. It looks like a
telephone billing record.
A It's a phone record and it's one of — I have four
or five, I think approximately, because I've got computer
lines and all that, telephones. I'm not really sure how
many telephone lines, but this is one of the telephone lines
in our office that I have.
Q Okay. And I think it will just be simplest if I
just note for the record that that same number appears in
several places .
A That is correct.
Q On this page.
A But I believe some of them other Birmingham numbers
are Rob's numbers.
Q Which ones do you think might be that?
A I think the 5000 number is.
Q 205-879-5000?
A Yes .
Q And that's the bottom number on the page?
A I think maybe that 205-824-3117. I'm not certain on
that, but I believe that it may be a campaign headquarters
number, but I'm not sure. I had Rob's hom.e phone numbers, I
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34
had his parents' phone numbers. And I don't do business in
Birmingham. Most of the Birmingham numbers in some way in
my phone records involved the Rileys. I have one girlfriend
from college who lived in Birmingham and so I had her cell
numbers. But other than that, I believe most of the
Birmingham numbers are his or are headquarters numbers
because, you know, they run multiple lines in volunteer
centers and things of that nature. But I can't track all
those numbers.
Q That's extremely helpful. And if you will just flip
— I'm sorry -- to the other. Exhibit 5 now. Yes, that
larger stack. And just so we can see, if you go about seven
pages in, there's a document, Simpson 532. It looks to be a
fax cover sheet. I think that may be it in front of you.
A Yes .
Q And what is the office telephone number for Rob
Riley's office on that one?
A It's the 5000 number.
Q Okay.
A That matches the phone.
Q And I'd like to ask you about one more document
that's in the stack. It's Simpson 550. It's about
two-thirds of the way through. It looks to be a complicated
document that looks to be a printout of an e-mail that was
faxed to someone else and also has some handwritten notes on
55
35
it .
A That is correct.
Q Okay. And the general substance of this appears to
be an effort to get a Senator to send a letter. I'll read
the first two sentences of the e-mail. "I've been talking
with Robby from Hutchinson's office. He has offered to try
to get the Senator to send this letter." And the letter has
to do with getting payment on a FEMA matter.
A That is correct.
Q Can you read the handwritten note that's at the top?
A "I e-mailed this to" — and that's the client's name
— "then Karl and Stewart today."
Q Hold on. Oh, I e-mailed -- sorry. You are reading
it . Sorry .
A I say the blank is the client's name that I can't
disclose. But it says, I e-mailed this to the client's
name, Karl and Stewart today.
Q And then it says Rob?
A Yes, that's the note he sent me.
Q You didn't read the beginning which is "To Jill."
A Yes .
Q Is this Rob Riley's handwriting?
A Yes , it is .
Q Okay. And the Karl that is referenced here — well,
let me ask about Stewart. Who is the Stewart that's
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36
referenced here?
A Stewart is a lobbyist that works for the Federalist
Group .
Q Here in Washington, D.C.?
A Yes. And they've now been bought out by Ogilvy.
Q This matter was an effort to collect on a FEMA
contract?
A That is correct.
Q And the Karl that is listed here, do you know who
that is?
A I believe that is Karl Rove.
Q And why do you think that's Karl Rove?
A Rob -- what Rob would do for us occasionally, he
would ask me to do little odds and ends for him, such as
follow Don Siegelman and stuff. And then he for me
occasionally would — if I needed somebody to write a letter
to speed up a client getting a check or whatever, he would
see if he could find somebody that would help me with that.
And it was not uncommon for him to talk to Karl Rove and
Stewart Hall about that because he would make reference to
it .
Q You had heard Karl Rove's name come up before in
conjunction with matters like this?
A Yes. And basically what we would do, we would help
to write the letter that we wanted or he would help to write
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37
it. He would send it to me for me to approve, then he would
send it to Stewart and our -- or whoever. And they would —
and Karl -- and then they would attempt to get it approved.
You know, I mean get somebody to do it.
Q Great. Could we go off the record briefly?
[Discussion off the record.]
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38
RPTS KESTERSON
DCMN ROSEN
[1:30 p.m. ]
Q What I’d like to do now is we’ve -- Ms. Simpson, you
sent a DVD up to the committee along with materials and we
have that playing on a laptop computer here. And I'd just
like you to look at it briefly to understand -- or to tell
me if this is video of the Klan rally that you attended on
that — Klan rally that you observed on that Saturday the
16th.
A It is. And I do want to state for the record that
is the only one I've ever attended.
Q I apologized as soon as it came out of my mouth.
And we're not going to watch the full — more than an hour,
I think, of video that we have here. But you've reviewed
this closely and you described that it shows Parker Edmiston
putting up the signs?
A That is correct.
Q Okay. We'll just play it for a minute to see.
A I'll probably help you because he comes from this
direction over here.
Q Are you familiar enough to know if it is soon that
he appears?
A Yes, it is pretty soon. It is about 12:58 he shows
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39
up on the site. I had to go a few minutes early because —
I'm not certain. I think you may see him in a second or two
or a minute or two. He has already got one sign up. There
was already one sign up, but — and I don't know how that
had gotten there.
Q As we're watching, it shows folks in confederate
gear — there is not actually any Klan regalia. But does
that show up later?
A That shows up later. Basically this is when they
first start to set up. Now, here comes Parker. And you
don't yet see him. When I first saw this videotape --
because I didn’t get this videotape until a couple of weeks
ago. And when -- I thought it is not going to show his
face, but it shows you him as pretty as can be.
Q Is that him right there?
A That is Parker.
Q I'll describe the white gentleman with grayish hair
and a sweatshirt of some kind with a logo over the chest and
a red T-shirt or something underneath?
A That is correct.
Q Putting up a couple of rally signs?
A I saw that very scene -- I took pictures of it and I
did not do the videotape. The cops had actually done the
videotape. But that's how it starts, what he did that day.
Q Thanks very much. And we're going to mark that DVD
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as Simpson 7 -- 6.
A And that is not all inclusive of what he did. There
is actually more signs.
Q I understand. Well, that was very helpful. I'm
very sorry. Simpson 6 is the DVD. Okay. We're getting
that right now to mark.
[Simpson Exhibit No. 6
was marked for identification.]
BY MR. BRODERICK-SOKOL:
Q How did you come to obtain that video?
A I got a call from an individual who was connected
with the Scottsboro Police Department. I had a spouse that
was connected to the Scottsboro Police Department and said
that the Scottsboro Police Department — that they had heard
I had been trying everywhere to find a videotape. I had
been to the Jackson County Sheriff's Department several
times. I gave my pictures away to the Rileys, so I didn't
have proof of that, even when I made my affidavit. But I
knew that it had been videotaped because I had knowledge of
that from being there that day and also — but I did not
know who the videotapers were. When I talked to the
reporter, he said a videotaper was the sheriff's department.
But I've tried to obtain pictures from the sheriff's
department and a videotape and they contended they could not
find them.
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Approximately 2-1/2 weeks ago, after having been beat
black and blue in the Alabama press, a call in my office
comes in at 7:00 approximately at night and it is a woman
who says do you know that the Scottsboro city police has
five hours of videotape that shows exactly what you are
saying has occurred. And I said no, but who has got it, you
know. And so she proceeded to tell me and I said why are
you calling me about it. And she said, I want you to have a
copy of it. So I said, okay, how can I get it. And she
said I will bring it to you.
Q And is that what happened?
A That what happened.
Q And who was that?
A She asked me and I talked to the Alabama bar when
she handed it to me. People from the sheriff's
department -- I mean, the Scottsboro Police Department gave
it to her, but she asked me -- she said that -- she said I'm
your client now, here is the pictures and that's what she
did. That's the video and that is what she did.
Ms. Lynch . That is not sufficient to establish
attorney/ client relationship .
BY MR. BRODERICK-SOKOL:
Q Let's try something different. Would you prefer not
to name the person?
A I’d prefer not to name --
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Q It is a voluntary interview and I don't have a
problem or strong need to know myself. That's fine. But it
was —
A It was my understanding that she had obtained it
through the Scottsboro City Police Department.
Q Okay. That's fine.
A But she brought it and she didn't want to be
involved. So —
Q That's fine. Okay. After Governor Siegelman
conceded the 2002 election, what was the next time you spoke
to Rob Riley about that governor's race?
A Some times late November or December. I believe it
was December, but I'm not sure. I mean, I — after he
conceded -- I may have spoke to him -- I don't know exactly.
November or December.
Q Okay. And did you have a conversation with him
about Mr. Siegelman 's decision to concede?
A Yes, I did.
Q Can you describe that conversation?
A I understood from what Rob told me that Terry Butts
talked to Mr. Siegelman and some of his campaign people is
what I understood. And in that conversation basically,
Mr. Siegelman had been offered to go ahead and concede, that
the pictures would not come out and that they would not
further prosecute him with the justice department.
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Q So your statement is that Rob Riley told you that
Terry Butts had essentially given Don Siegelman two
messages, this business about the Klan rally and the
democrat putting up the signs would go away and the threat
of prosecution from the justice department would go away?
A Yes .
Q If what, if he conceded?
A If he conceded. And I actually kind of put that in
my affidavit too. I don't know that you want me to refer to
it .
Mr. Sandler . Just answer the questions now.
Witness . Because Terry -- part of when we had been
talking about that -- but anyway -- had -- that day that we
talked on the phone had involved Terry said, you know,
basically everything is going to be over, he is going to
give Don assurances everything is going to be over.
Q Back in November when you were on the phone, you
heard Terry say the assurances he was going to give Don were
everything and you understood that --
A And I asked --
Q What did you ask?
A I asked Rob about if it was going to all be over for
Siegelman when we had the call in December, just talking to
him, I said what have they done on the other case, the other
cases .
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Q And what did Rob say?
A He said in that — at that time that everything was
going to be over and they did, I reckon for 14 months
afterwards it was over from what I understand. But that's
not -- I can't say that from personal knowledge, but --
Q Okay. I understand what you are saying, that as --
look, you don't see Siegelman was prosecuted for some
substantial period of time.
A Right.
Q Where -- where were you if you remember when you had
this conversation with Rob Riley?
A I had phone calls with him and you've asked me this
before. And I saw him during that time because he saw
clients. He would come to my office regularly to see
clients and stuff. So the thing is this, I just don't
recall, you know, exact location of where I was. I'm not
sure — I think we had actually several communications
about, you know, Don Siegelman and Terry Butts going and
talking to him. But I can't say a specific date or time or
place .
Q Could they have been on the telephone or do you
believe these conversations were in person?
A I really believe they were on the telephone, but I'm
sure that when he came to the office, we probably laughed
about it also. So
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Q Okay. And you say as I understand what you're
saying, the memory you're describing may be what you learned
from Rob Riley over the course of more than one
conversation?
A Yeah, I've thought about it quite a bit. We — I
mean, this is something we -- right around that time, we
talked about several --
Q And looking at that sort of the -- I guess the sum
of your recollections from those conversations, is there
anything else you remember that you haven't described here
about this kind of confrontation between the Riley campaign
and Siegelman and the issue of the -- the possibility that
he might be prosecuted if he didn't stay out of politics?
A I just know that Rob pretty well indicated to me
that Terry had talked to him and made these assurances. I
didn't necessarily believe they were going to live by them
because I -- if Don got back in the race, I think, you
know — I said, well, what if Don doesn't follow that and
Rob said I think -- as I recall -- he basically said well,
if he doesn't, you know, they'll prosecute him. So --
Q And did Rob ever tell you if he was present with
Terry Butts when Mr. Butts spoke to Siegelman or folks from
Siegelman 's campaign?
A From what I recall, I understand that Terry Butts
did this all by himself. And I don't know how he did it. I
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just recall that Terry did whatever he did by himself.
Q When Rob was telling you those thing, he would had
to have been relying on what Terry Butts or somebody else
would have told him?
A Right.
Q I’d like to move forward in time now. Did you have
another conversation with Rob Riley about politics and Don
Siegelman in the early part of 2005?
A I did.
Q Okay. And how did you come to be talking to Rob
Riley that day?
A I went — I adopted a baby -- you know, I lost a
baby December 25, 2003 and then 2004, I didn't work a lot
during that year because I was so depressed over losing the
baby and I told you about that in 2005, I adopted a baby on
January 9 and I was so excited because I had missed being
out so much that I shopped a lot during that time because I
wanted to buy baby stuff.
Q A baby will do that to you.
A And I ended up going to Homewood, which is probably
the nicest place you can shop for baby stuff in our state
which is right -- the street runs right into Oxmoor Drive or
whatever that street is that Rob is on and he was like a
block or so from where I had been shopping for the baby.
And I wanted to take by and show a picture of the baby. Rob
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had not been in the office during the month of January, and
I wanted to stop by and show him a picture of the baby. And
so I left my shopping after I had bought a bunch of stuff
and went by to show him a picture. I had a picture of the
baby in my hands, you know, where you hold it. And so
anyway, I stopped by his office and we started gossiping.
Q And did you discuss the 2006 gubernatorial election
that was coming?
A Yeah. I mean, you know, it always rolled around to
politics any time we got together and who knew what. He
asked about some politicians up in my area. I think I
mentioned first, you know, the -- you know, what is going to
happen in the 2006 election. There had been some talk at
one time originally that Rob might run after his daddy's
first term, but Bob liked the job so much, he wanted to stay
in it according to Rob. So we were talking about that.
Then we got to talking about who was in the field, who was
going to be running. We talked about Lucy Baxley and her
weaknesses and how we could hit her, you know, with what we
could run with on that.
Q Is she a Democrat or a Republican?
A She is a Democrat.
Ms. Lynch . Could you say her last name again?
The Witness . Lucy Baxley.
BY MR. BRODERICK-SOKOL:
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Q And did you talk about Don Siegelman?
A And we talked about Don Siegelman.
Q And what did Rob Riley say about Mr. Siegelman?
A That Don Siegelman was the biggest threat that we
had. Don Siegelman — Rob, he had several names for him,
but one of them was the golden child. Don Siegelman is kind
of like a golden child for the Democratic party in our
state. So, anyway — and is an incredible fund-raiser. So
he was talking about who we thought he might raise funds
with. And then he said that he -- I said, well, you know,
he is not supposed to run again, but, you know, Alice
Martin, I had like, you know -- we discussed Alice Martin
messing up the case in Birmingham.
Q Okay. Let me stop you there. Before talking about
Siegelman, you discussed Alice Martin messing up the case,
but Siegelman running — you discussed Alice Martin's
prosecution of Mr. Siegelman up in the Northern District of
Alabama?
A Dh-huh. And we start talk — we really — we talked
about Lucy Baxley and then started talking about Don
Siegelman. And, of course, the first part of our
conversation was that Alice Martin had miserably messed up
convicting Don.
Q Yep.
A And also we talked a little about the fact that Don
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had -- there had been a poll done somewhere in 2003. And
based on communications I had with Rob -- but I didn't have
many in 2004. Don had decided to run before he was — Rob
and them had when he was going to run, even though he had
assured Terry Butts from what I understood that he was not
going to run. And — so Alice Martin on the last day or
whatever that she could convict him, she pretty much she
filed paperwork to prosecute him.
Q And this is all in the discussion you had with Rob
Riley, you learned all the things you're telling me now from
Rob Riley?
A I had not been in the loop that much in 2004. So we
were discussing how Alice had gotten this case, because I
was, like, how did — you know, how did, you know, she --
what caused her to bring that case? I thought she wasn't
going to bring it, you know. And we were having a
discussion about that. And he said they had gotten some
wind of the fact that Don was going to run again. But she
messed up the case. And then she got Judge demon who did
not believe in criminal intent. We had a discussion about
Judge demon not believing in criminal intent and that the
case got thrown out sometime in the fall of that year. And
Rob was kind of telling me the gossip about that deal.
Q These are things that had happened the year prior
when you had been somewhat out of the loop as you had said.
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you weren’t working or doing other things for personal
reasons ?
A And so, anyway, he was telling me all of the things
that Alice had done as far as having messed up the deal.
And then I — and that since she had messed it up, he was
definitely running, you know what -- I mean -- and then he
proceeds to tell me that Bill Canary and Bob Riley had had a
conversation with Karl Rove again and that they had this
time gone over and seen whoever was the head of the
department of — he called it PIS, which I don't think that
is the correct acronym, but that’s what he called it. And I
had to say what is that and he said that is the Public
Integrity Section.
And I read in the paper since they call it PIN, but he
called it PIS. So anyway, I said at the time that, you
know, what happened -- you know what I’m saying? So — but
they had a conversation with Karl and then Karl, it is my
understanding, then went over to the Public Integrity
Section and talked to the head of it.
Q About what?
A About Don Siegelman and the mess that Alice Martin
had made and it was my understanding in that conversation
after that conversation that there was a decision made that
they would bring a new case against Don Siegelman and they
would bring it in the Middle District, which is not my
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district where — you know, you and I have had that
discussion, I do not practice — I am admitted to the Middle
District back but that is getting pretty far afield from the
location of my office.
Q Okay. And who -- when you say they had made a
decision, who are you thinking of?
A Whoever that head of that Public Integrity — the
PIS was as Rob referred to it. And then whoever — and Karl
Rove .
Q And what -- well, from talking to Rob, this
conversation you're describing for me was in late January,
early February 2005?
A That is correct. Right after -- I was home with the
baby for about 3, 3-1/2 weeks or so, and then I started
getting out because I wanted more baby clothes and more baby
stuff. So —
Q And is your understanding, then, that the
conversation between Bob Riley and Bill Canary and Karl Rove
would have occurred sometime in 2004?
A I understood whenever Alice's case was over —
which we had the discussion -- I don't know when it was
over, but I think it was in October or September from what
I've been told. But sometime between when that case had
ended and when — and I kind of understood from what —
Q And when you were talking?
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A Yes, and when I was talking. And I kind of
understood it had occurred before Christmas, but I don't
know, November or December. But --
Q But it could have been any time —
A It could have been any time during that time .
Q Okay. And did Rob give you the name of the
person at -- I'm just going to call it Public Integrity --
that he thought he understood Karl Rove had spoken to?
A No, he said it was the head guy there and he said
that that guy had agreed to allocate whatever resources, so
evidently the guy had the power to allocate resources, you
know .
Q To the Slegelman prosecution?
A Yes. And that he'd allocate all resources
necessary .
Q And did Rob — well, did you discuss anything else
about the reason to bring the case or the decision to bring
the case in the Middle District?
A Oh, yes.
Q And what is that?
A I asked Rob why we needed to bring it in that area.
And, of course, he mentioned Leura Canary, Bill Canary's
wife, would be a good reason as to why to bring it. But he
also mentioned Mark Fuller.
Q And who is Mark Fuller?
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A Well, at that time -- I had heard about Fuller, but
I've never met Mark Fuller so, you know. But Mark Fuller is
the Chief United States Federal judge for that district.
Q Had you heard his name before Mark mentioned him?
A Yes, I had.
Q What did you know about Fuller then when Rob
mentioned him that day?
A In 2001 and 2002 when I was up here trying to —
helping with the campaign and trying to collect the money on
the the FEMA deal you read about, I made several trips up
here for that. We would meet over at Stewart Hall's office,
the Federalist Group. And I brought clients with me too.
And I had one particular one that came a lot, but he would
bring an entourage of folks who was involved in that FEMA
deal. Well, anyway, Rob and Stewart and I had several
discussions about these cotton tractors that do the storm
work. I represent folks without naming any identities, but
they predominantly do one kind of work and it is natural
disasters or manmade disasters. And when you do a storm
cleanup, you can make, like, 20, 30 million, 15 million in a
60-day period, a large percentage of the time. Rob and
Stewart were fascinated by that because they knew Mark
Fuller who had been — Mark Fuller had been at Alabama with
us because Stewart Hall was at Alabama when I was at
Alabama .
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Ms. Lynch. I'm going to object right now. I'm
confused about — are we still talking about a telephone
conversation with Rob Riley?
The Witness . This was not a telephone conversation.
Ms. Lynch. I think the question she is responding to
was still in regards to what was said to her or by her.
Mr. Broderick-Sokol . The question she is responding to
now is what did you know about Mark Fuller when Rob Riley
mentioned him.
Ms. Lynch . We're still getting there?
Mr. Broderick-Sokol . We're circling around to it.
The Witness . But anyway, I'll come —
BY MR. BRODERICK-SOKOL:
Q You're giving us a lot of how you know as opposed to
what you really knew about Mark Fuller, which is what I want
to understand. Why don't you start with -- you had just
mentioned college, that he had been at Alabama. Is that
what you had understood?
A With Stewart, me and Rob at the same time. But I
did not know Fuller at college. They claim I knew him, but
I don't recall him.
Q What is your recollection?
A I do not recall him. But they proceeded to tell me
that Fuller has all these contracts, but his contracts are
not the same type of contracts as mine. They were amazed
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that my clients could get these cleanup large sum, whereas
Fuller was getting large contract, but he was doing more
what I consider to be maintenance on aircraft and fuel
contracts, aviation kind of stuff which was not anything I
was familiar with. It really sounded kind of like an oil
job or doing government contracting.
Q So you knew that he had some business doing these
contracts, you have learned this from Rob Riley and Stewart,
whose name I'm not remembering.
A Hall.
Q And Stewart Hall. Thank you. Over that period, did
you know he was a federal judge when Rob mentioned him to
you that day?
A He wasn't a federal judge in 2001 and 2002. And,
no, on 2005 on -- when Rob and I were in the office, no, I
did not.
Q Okay. But when Rob mentioned Mark Fuller — well,
did Rob tell you he was a judge at that time?
A Rob, asked me, do you remember Fuller and I, it took
me a minute and I said, yeah, I remember Mark Fuller. He
said he is now a federal judge. I said she that guy that
did those aviation contracts, and that's how I -- that's how
I connected him.
Q Okay. And in that conversation in 2005, did you
talk about Mark Fuller's business dealings in government
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contracts ?
A We did.
Q And what did you learn at that time?
A Rob told me that Mark Fuller was still a government
contractor in 2005 and a United States Federal judge, which
I found unusual.
Q Did he discuss with you any of the types of
contracts that Mark Fuller was working?
A Yes, he did.
Q What did he say about that?
A He said that Fuller was doing fuel contracts, that
he was doing maintenance contracts, that he was doing
clothing contracts. He — he makes flight suits. So you
know. And he had Air Force and Navy and that he was — did
contracts with the FBI.
Q Okay .
A And I think the ATF, but — I'm pretty sure he said
the ATF also, but I'm not sure.
Q And did he talk to you about Mark Fuller's politics
or political work?
A He did.
Q What did you talk about in that regard?
A I asked him -- he made a statement that Fuller would
hang Don Slegelman. And I asked him how he knew that, if he
got him in his court. And he said that Fuller was
had
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been on the Executive Republican Committee at Alabama -- in
Alabama before he been a judge and he also told me about a
backlogging case, which is what you call the salary spike.
He called it the "backlogging."
Q Why don't you describe that?
A I had never heard the term "backlogging." So I had
to ask Rob what backlogging was. Evidently from what I
understand, Fuller had an employee when he was at the DA's
job, before he got to be a job in Coffee and Pike. And he
had two employees, a secretary and an investigator. And
during his term of being DA, somehow that investigator
wasn't making your typical salary, he kicked it up. And Rob
got to telling me that there was an audit done, a couple of
audits, I think, and that Fuller just hated Don Siegelman
and thought he was responsible for these audits on those
salaried employees and that there was something involving a
backlogging because they go back to figure your retirement
and there was something kind of backlogging deal. But I
didn't fully understand it at that time.
Q And did he say any more about what Don Siegelman had
to do with those audits that put Mark Fuller out?
A He said that Don Siegelman had caused Fuller to get
audited. That's what Fuller thought. He hated him for
that .
Q And this comment that he is going to hang Don
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Siegelman, is that -- was that Rob Riley speaking or was he
relaying something he had heard from someone else?
A I don't know. You would have to ask him.
Q Did you have any understanding -- well, did Rob say
that anyone had spoken to Mark Fuller about the Siegelman
case ?
A I understood that Rob Riley believed that Mark
Fuller would get that case.
Q That is not exactly responsive and you may not know.
But did Rob Riley say that anyone had actually spoken to
Fuller about getting the case?
A No.
Q Did he say how he knew — did Rob say how he knew
they could get the case to Fuller?
A He said Mark Fuller would be the one who would be
that judge?
Mr. Sandler . The question was, did he say how he knew
that in the conversation.
The Witness . No. And I didn't ask how he knew.
BY MR. BRODERICK-SOKOL:
Q Right.
A I mean --
Q I understand.
A Some questions are better not asked. So --
Q Take one second to look through my notes before
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moving on.
Mr. Erode rick- Sokol . Can we go off the record?
[Recess . ]
BY MR. BRODERICK-SOKOL:
Q Just really the last area I have to cover is your
decision to draft the affidavit that was marked as Exhibit
3. At some point in 2006, did you call Don Siegelman's
legal team with the information that you had?
A I did.
Q Who did you call?
A I called Redding Pitt's office.
Ms. Lynch . Could you say that again?
The Witness . Redding Pitt. I may have said it with an
S. Redding Pitt. I don't know him that well. So -- but I
never met him actually.
BY MR. BRODERICK-SOKOL;
Q Did you talk to anyone from his office?
A I talked to a secretary, but she put me straight
through to voicemail,
Q And did you get a call back?
A He never called me back.
Q And at some point, did you end up discussing that
the information you had on the Siegelman and Scrushy case
with a lawyer named Joe Espy?
A I did.
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Q Who is Mr. Espy?
A He was a lawyer for Lowell Barron.
Q How did it occur to you to talk to Mr. Espy about
these matters?
A In the fall of 2006, a Riley campaign person came by
my office wanting me to meet with the governor at a -- his
birthday party out at Randy and Kelly Owens' house, who
Randy sings in the band Alabama and Randy's bandmate, Teddy
Gentry is my ex-brother-in-law, although he is still my
brother-in-law. I mean, we get along. I see my ex-husband
every day. But anyway, the thing is this, the governor was
having a birthday party out there and they wanted me to meet
with them to talk about some campaign stuff. And this
lawyer asked me to do some things I did not feel comfortable
with .
Mr. Sandler . This lawyer who?
The Witness . He was a disbarred lawyer at that time
actually, but he had been a lawyer.
Ms. Lynch. Can I clarify? Was that the campaign
worker or --
The Witness . The campaign worker is the lawyer. He
was a disbarred lawyer working in the Riley campaign with a
guy named Gerald Dial. And that lawyer's name was Hoyt
Baugh .
Mr. Broderick-Sokol. Okay. He asked you to do
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something you were not comfortable with.
Mr. Sandler . Hold on a second. I'm not clear on the
record. The disbarred lawyer's name was —
^he Witness . Hoyt Ball. Anyway as a result of that, I
ended up calling Joe Espy.
BY MR. BRODERICK-SOKOL;
Q Why Mr. Espy?
A I called Doc Barron, who is the brother of a senator
that they had asked me to do this work for, a state senator.
And Doc called Lowell Barron and Lowell called Joe Espy.
And then they asked me — it got back down the food chain
somehow for me to call Joe Espy.
Q Was Joe Espy a lawyer representing any of these
people?
A He represented Lowell.
Q Okay.
A And I told Joe — all I had told Doc Barron is they
asked me to do something I felt uncomfortable with and
Lowell needed to be aware. And then, of course, I get this
phone call back that they want me to talk to Joe Espy. When
I talk to Joe Espy, he recommends that I talk to the Bar.
So I ended up calling the Alabama Bar and talking to them
about this also.
Q And we're not talking — we're not talking about the
Siegelman-Scrushy prosecution. You're talking about
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something they asked you to do that made you uncomfortable,
you asked the Bar about that at Joe Espy's suggestion. How
did you come to be talking to Joe Espy about the matters
that ultimately end up described in your affidavit?
A The Bar said that I could talk to Joe Espy, so I
called him back and I told Joe Espy what they had asked me
to do. Joe Espy felt it was illegal, I believe. I mean, he
indicated that to me. And, anyway, at one point he says
good God, why would they ask you, Jill Simpson, lawyer from
Rainsville, to do this. And I said, well, I'm the one who
took the pictures when Don Siegelman conceded and I said I'm
sure you know about that because you represented
Mr. Siegelman back at that time. And Joe Espy said, no, I
don't know about those pictures, but what are they pictures
of?
Q Let me stop you there. Joe Espy represented Don
Siegelman?
A Yes .
Q When did he represent Don Siegelman?
A In the election contest in 2002.
Q Okay.
A And I knew that because of having worked with Rob
and volunteering.
Q Did you describe the pictures for Joe Espy?
A No. When I realized he didn't know, I decided that
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I wasn't going to tell him what was in those pictures at
that point. In that conversation. I did later on, but not
in that conversation.
Q Okay. When did you end up telling him the things
that you knew that would show up in your May 3rd — your May
21st affidavit that we've marked?
A In January -- end of January, first of February of
2007. That conversation had occurred in 2006 and that —
there was a case that pursued — I told Joe Espy — and this
might help. I don't know. I told Joe Espy they were fixing
to file a suit because that disbarred lawyer had asked me to
be involved in something illegal in that. So there was an
ongoing suit. So I talked to him. And when the case was
being dismissed is the date that he got back on the
pictures .
Q Let me -- he got back on the pictures?
A He got back on the subject.
Q And what did he ask you?
A He said, Jill, the case is about to be over with the
senators. And he said, so, I really have no conflict in —
you know, you can tell me this and I'd have client
confidentiality if you told me kind of what the gist of this
was with these pictures. I won't ever tell anybody is
basically — I can't say exactly what his words were, but he
said he would not ever tell. But he really wanted to know
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what those pictures were of. And he was speculating. His
mind was in the gutter and I finally just told him what the
pictures were of.
Q Okay. And did you tell him about the conversation
that you were on as well?
A I did.
Q About trying to pressure Mr. Siegelman to concede?
A I did.
Q Did you tell him about the reference — did you tell
him about the Bill Canary statement that had been worked out
with the Justice Department?
A I told him pretty much the story.
Q And --
A I did not tell him about Fuller.
Q And what did he say?
A I just told him -- I mean, I did not tell him about
Fuller and the 2005 conversation. I didn't see that was a
need at that particular point.
Q Okay. And what did he say to you once he learned
that information?
A What?
Q What was Mr. Espy's reaction to that information?
A Basically he felt I had an ethical duty to call the
Bar and tell them what I knew about that.
Q Why did he think that?
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A Because he thought that.
Ms, Lynch . I'm sorry, I'm going to object. Did he
actually state his thought or are you just speculating to
what he thought?
The Witness. I hate speculating anyway. He just told
me he felt I should call the Bar. I'm not going to get into
what his mental impressions were.
Mr. Broderick-Sokol , Absolutely. And thank you.
BY MR. BRODERICK-SOKOL:
Q So what did you do?
A I called the Bar.
Q And what did they say?
A They said that I should probably talk to
Mr. Scrushy's attorney because in that conversation we had
talked a lot about Terry Butts who had represented in
addition to Mr, Canary, we had talked about Terry Butts, who
had represented governor Riley and had also represented
Mr. Scrushy. And I knew from some of that conversation,
you've not asked me that question, a couple of other things
about that. So the Bar said that I needed to call Art
Leach .
Q What did you know about Terry Butts representing
Mr. Scrushy?
A I knew from things that Rob had told me that Terry
Butts would go back and tell the governor things, even
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though he acted like they weren't friendly, he would tell —
Mr. S andler . I'm sorry. This is -- your question was
whether Terry Butts had represented Richard Scrushy?
Mr. Broderick-Sokol . Yes.
The Witness. Yes, he represented Richard Scrushy.
BY MR. BRODERICK-SOKOL:
Q In what case?
A In the Don Siegelman-Richard Scrushy case.
Q The criminal case at that time is pending in the
middle district of Alabama?
A That's correct.
Q Okay. And Rob had previously told you that
Mr. Butts was doing what?
A He would occasionally tell stuff about what was
going on with Scrushy's case.
Q To who?
A To Bob.
Ms. Lynch . Bob?
The Witness . Riley.
BY MR. BRODERICK-SOKOL:
Q And when did Rob Riley tell you that?
A I can't say for certain the dates. I mean, I didn't
write them down. It was just gossip.
Q But was that in that same January 2005 -- late
January, early February 2005 conversation?
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A It would have been sometime in the early part of
2005, but I can't say or -- I really can't say a date
because I — I'm hesitant because, I mean, he mentioned that
several -- I mean, he mentioned -- he mentioned that Terry
Butts was -- he, at one point, mentioned to me that Terry
Butts was going to be representing Scrushy, whenever that
happened, that's what he mentioned. And then he said that
Terry Butts had told him X, Y, Z. And I didn't really write
down what Terry Butts had told. So, you know, I can't say
specifically what they said, but, I mean, I knew that there
was discussion.
Q Okay. Did you go to the Bar after you spoke to Joe
Espy as he had suggested you should?
A Yes, I did.
Q And what did they tell you to do?
A Call Art Leach.
Q Who is Art Leach?
A He is an attorney for Scrushy.
Q And did you call Mr. Leach?
A I did.
Q And can you describe the conversation you had with
Mr. Leach?
A I told him what had occurred about the Klan rally
and the phone call .
Q And did you tell him about Judge Fuller?
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A He asked me -- Art told me, he said Jill, you know,
this is an interesting story. He said, is there anything
else you know — because if I was you, if I knew anything
else right now, I think I would go ahead and tell me, you
know -- I mean -- because I just told him that. But he
asked if there were other things that I knew that I thought
they might should know. And I told him there was one other
thing, but I needed to see if I could document it because I
didn't want to say anything about a Federal judge that I
couldn't document, you know what I'm --
Q Yeah.
A So I told him there are some things and I need to
look up those things to see. But I did not -- I didn't tell
him what it was. I didn't tell him it was a Federal judge.
I just said there is something else, but I'll send you an
e-mail on it if I get it. He asked me to do some things for
him also in that conversation.
Q Okay. When is this conversation?
A It was sometime before 2/05 because the things he
asked me to do I e-mailed him and gave you a copy of.
Q Before --
A 2/05/07.
Q Before February 5, 2007?
A Right.
Q Okay. And what did he ask you to do in that
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conversation?
A He — when I told him my story, he asked me if I
still had a copy of the pictures.
Q Okay. And what did you tell him?
A No, but I thought that I might could find a copy
because I had been to the Klan rally and I knew that the
press was there and I knew that there was videotapes out
there .
Q Okay.
A And he asked me to see if I could run those down.
Q Did he ask you at that time to do an affidavit or
give him a statement?
A He told me that he would like to take an -- he would
like for me to do a statement, a written/sworn statement.
Q Now, Art Leach, you said, is one of Mr. Scrushy's
lawyers?
A [Witness nods head.]
Q And Terry Butts is another one of Mr. Scrushy's
lawyers at that time?
A Uh-huh.
Q So how did he — did he say anything to you that he
believed Mr. Butts should not be representing Mr. Scrushy?
A Art Leach had a very difficult time when I explained
to him — yes, he liked Terry Butts.
Ms. Lynch . I'm going to object. That is not
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responsive .
BY MR. BRODERICK-SOKOL:
Q Did he say anything to you that he did not think
Mr. Butts should be representing Mr. Scrushy?
A If I what I said was true, he should not be
representing Mr. Scrushy?
Mr. Sandler . The question was, did he say that to you?
The Witness ♦ Yes, he did, you know. But I don't think
he — okay.
BY MR. BRODERICK-SOKOL:
Q And he asked you to do a sworn statement?
A He did.
Q And did you do one at that time?
A No.
Q Why not?
A I really didn't want to be involved with this, but
the Bar had told me because after I told Joe Espy, Joe Espy
said he thought I had ethical duty. I called the Bar hoping
that I didn't. They said I did. So then when I called him,
I didn't really want to do that. And, so -- but I told him
I would get him a copy of the tapes and stuff like that.
Q Okay, And you also -- I believe you said that you
decided not to tell him about the Fuller information because
you wanted to see if you could document it?
A That is correct.
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Q Given that these were allegations about a Federal
judge. And did you make some efforts to document what Rob
Riley had told you?
A I did.
Q And did you find any information about Judge Fuller?
A I did.
Q Okay. Let me mark Simpson — this is 7. This is 6.
We never, I think, got a sticker on it. And this will be 7.
[Simpson Exhibit No. 7
was marked for identification.]
The Witness . Can we go off the record a minute?
[Discussion off the record.]
BY MR. BRODERICK-SOKOL;
Q Going forth. I've marked as Simpson 7 a letter from
you to Art Leach February 15, 2007 which just looking at it
appears to describe information about, quote, your judge and
your Mr. Scrushy case. Why don’t you tell me what this
letter is?
A Well, I got to thinking about what Art Leach had
said about telling him anything extra and got to thinking
about the fact that they wanted me to do an affidavit and I
didn't really want to do an affidavit. So I pulled all the
stuff I knew about the judge and I hoped that if I gave them
the judge stuff, I would never have to do the affidavit.
And this is the letter that I sent. And I tried to make it
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as general, not as though it was personal knowledge by me,
but just share the facts.
Q The letter doesn't -- it is intentional that this
letter does not say Rob Riley told me some of these things,
it is just facts that are reported?
A That is correct. Because I didn't want them to ask
me to do an affidavit on Judge Fuller for sure.
Q As far as you know, was the information — well,
this letter says it was faxed over and I'll just note that
on the third page it says it was the 17-page fax. I have
not marked as an exhibit the stack of Fuller-related
material that you sent up to the committee. But in addition
to this letter, did you send records and documents about the
judge's finances and other things to Mr. Leach?
A I sent some, but I didn't send all that I had at
that time .
Q Did you ultimately give him everything that you
have?
A I did.
Q And do you know if the materials you have provided
to Art Leach were used to draft a motion seeking a recusal
of Judge Fuller?
A They were .
Q And did you play -- what role did you play in
drafting that motion?
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A I did not draft or write one word of that. They did
send a copy for me to look at and to review to see if I saw
any factual mistakes because I had pulled all the stuff and
I knew the facts .
Q Did you correct any factual mistakes?
A I actually think that there was one mistake on a
figure for one of the contracts and I told them, but I did
not type on no page or anything. I think I just orally said
I don't think that is the right amount of money in a
contract. I think they messed up on the amount.
Q Okay. And are you aware that that recusal motion
was ultimately denied?
A I am.
Q And when did you learn that?
A I guess the day it happened from the news or from
one of them. I don't know.
Q Well, do you remember when that was?
A It would have been, I believe, in -- it could have
been late April, but I think it was around the first of May.
I wasn't keeping up with dates.
Q You testified a minute ago that you had hoped that a
recusal motion might succeed and relieve you of what you
felt was some obligation to do an affidavit. Did the denial
of the recusal motion affect your decision, whether to draft
an affidavit?
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A It did. But the Bar -- and this is one thing I
should say. When I sent this letter, the Bar told me — I
talked to them about this that I sent. And I — I told Rob
Lusk they were wanting me to do an affidavit and I didn't
want to do an affidavit, you know, if I didn't have to. But
the Alabama Bar felt I had an ethical and kind of a moral
obligation to do one in light of what I had -- what my story
was .
Q I think I missed a name you said. You told --
A Robbie Lusk. I had multiple conversations with him,
Q Who is he?
A He is the general counsel for the ethics portion of
the Bar.
Q Thank you.
A And so I kind of felt an ethical duty to do an
affidavit with what I knew and in light of all of the
circumstances after Fuller recused. I had hoped he
wouldn't — I had hoped he'd rule in a way in a way that I
wouldn't have to do an affidavit.
Q Okay. We have been speaking about contacts you've
had with Art Leach who represented Mr. Scrushy. Did you
have contacts with anyone representing Mr. Siegelman about
drafting an affidavit?
A I have only had two contacts with Mr. Siegelman.
Q I asked about anyone representing him first.
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A I've never had any contacts with anyone representing
him. I've not spoken with one of his lawyers to date.
Q Okay. And you have had contacts with Mr. Siegelman
himself?
A Two .
Q How did those come about?
A I believe it was February sometime.
Ms. Lynch . I'm sorry. Of this year?
The Witness. Of 2007. It was after I had talked to
Art Leach. I asked a friend of mine who I do legal work for
to run an AutoTrack for me on Mark Fuller. And which
basically will -- what an AutoTrack is kind of like a list
that shows all these finances and I was running all these
planes that he owned because he owned -- his corporation
owned a bunch of planes and it is kind of an investigative
computer generated program. Mr. Bollinger knew
Mr. Siegelman and he asked me --
Q And who is Mr. Bollinger?
A He is a client of mine.
Q And is that the one you were just referring to a
moment ago?
A Yes.
Q Okay. So you asked Mr. Bollinger what?
A If he would run an auto track for me on Fuller.
Q Yeah. But then you were just about to say something
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else you asked him?
A And -- well, I didn't ask him anything else but to
run an AutoTrack. Anyway when he ran the AutoTrack, he
basically asked me what is this about and I told him that I
was trying to avoid having to give an affidavit, you know,
because the Bar kind of felt I had this moral/ethical duty.
And he said that he was going to contact Don Siegelman. And
I told him I don't think you ought to do that. And he said,
well, you didn't tell. So around that same time I had
written the letter -- I think I had already written the
letter but I'm not certain on that. So he —
Q Had already written what letter?
A This letter, the 15th, the February 15th letter.
Q Okay. Simpson Exhibit 7.
A And he called Don Siegelman and he told Don
Siegelman the judge thing. Don had already heard, I reckon
from what I understood, through Scrushy's bunch, the phone
call, but had not heard the Fuller stuff or whatever. But
he called and told Don the Fuller stuff. And then Don
called me because Mark called me back and said that Don
Siegelman wanted to speak to me. That is the first time I
ever talked to Don Siegelman.
Q Okay. Did he -- when did you speak to him?
A I don't know what the date was.
Q In this same period of February 2007?
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A Yes.
Q After you sent that letter to Art Leach?
A I'm not certain if the letter had gone out. I was
already working on it. I can't say with certainty.
Q That's great. And did Mr. Siegelman phone you?
A He did.
Q And where were you when you got that call?
A I was at my office I believe.
Q Was anyone else with you?
A No. Mark had called me at home and said that Don
was wanting to talk to me and I said, well, I'm heading to
the office. So as I recall, it was at the office.
Q Okay. And what did Mr. Siegelman say?
A Mr. Siegelman knew about the phone call
circumstances by that point and I don't know how for
certain. But he also asked me about Judge Fuller.
Q Okay. Did he ask you to do an affidavit?
A He told me it would help if I would do an affidavit,
would I mind speaking to his lawyers and doing an affidavit,
and I told him at the time that I didn't really want to do
an affidavit if I didn't have to, but I had been doing that
research on Fuller and -- from what Rob had told me — and
thought I could avoid it,
Q Okay. I think you said you had two conversations
with Mr. Siegelman.
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A Yeah, that one lasted about 45 minutes. The next
one, he shows up sometime in March or April over at Mark
Bollinger's house or office. I think maybe an office. I
don't know. They just called me from a number. And asked
me again if X would do an affidavit. And that was a
10-minute phone call. They were going to see Artur Davis, I
think, because it seems like they mentioned he was speaking
somewhere. And they were going to go see him, that
Mr. Siegelman was. And he invited Mark to go with him.
Q To see Mr. Davis speak. Did -- was that before the
recusal motion had been denied?
A I believe it was.
Q And did you agree to do an affidavit at that time or
were you still holding out hope of avoiding doing it?
A I was holding out hoping to avoid doing it.
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RPTS SCOTT
DCMN BURRELL
[2:35 p.m.]
BY MR. BRODERICK-SOKOL:
Q So, ultimately, what changed your mind, and why did
you finally decide to draft the affidavit that was marked as
Exhibit 3?
A Well, I thought it was the right thing to do.
Q And the affidavit is dated?
A March 21 — May 21st.
Q May 21st. When did you begin drafting it?
A When did I begin?
Q Well, why don't you describe for me how this
affidavit became drafted?
A Okay. I told John Aaron I was nervous about
drafting the affidavit.
Q Who is Mr. Aaron?
A He is a lawyer.
Q Who does he represent?
A No one in this deal, technically, I don't reckon.
Q Why were you discussing it with him?
A In the first phone call that I had with Don
Siegelman in February or early March -- and I think it was
February -- he said that John Aaron was a political
researcher, and I told him what I had been researching about
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Mr. Fuller and that I was still pulling up stuff.
Judge Fuller, and he had had — he said, well, John Aaron
could help you, and he said, "I'll have him give you a
call." So John Aaron gave me a call on pulling up, but I
sent you all --
Mr. Sandler . Just let him ask the question.
The Witness. Anyway, John Aaron, I just got to know
him through that, and that's — I just asked him to help me
write the affidavit.
BY MR. BRODERICK-SOKOL:
Q In terms of advising you?
A Yeah, a little bit.
Q You had talked to him about the facts of the Klan
rally in the phone conversation before?
A Yes .
Q Okay. Start again — not again -- but continue.
You spoke to John Aaron.
A And I asked him if he would just help me with the
affidavit, but I didn't like his affidavit at all, so —
Q Did he prepare a draft of an affidavit?
A He did.
Q Roughly, how far before May 21st was that?
A I don't know if it wasn't the same day. I don't
recall if it was 2 days or 3 days or what. I mean I just --
it seems like it was a couple of days before, but I kind of
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just kept delaying.
Q Okay. So he prepared a draft and gave it to you.
What was your reaction when you looked at it?
A I didn't like it.
Q Okay. Well, what didn't you like about it?
A I thought I just needed to do it. John Aaron, he
just did a basic affidavit that was about Terry Butts.
Q Okay. So the focus of it didn't include everything
you thought it needed to include?
A Right, and I felt like if I was going to do an
affidavit I only wanted to do it one time, and they asked me
to do it on the specific day. I knew the events that had
occurred, and so I sat down with my secretary on the day
that that thing is signed, and I redid the affidavit
completely .
Q Did you start from scratch or did you start with
Aaron's and change it around?
A I'm not certain. I basically got kind of the format
of what they wanted in an affidavit, and I do affidavits
occasionally, but I just -- but I don't know whether she did
it from theirs or not. I dictated to her what I wanted to
say. That's what I recall.
Q So she was typing and you dictated?
A That's what I did.
Q Did you just start and dictate straight through one
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time?
A I don't know. I may have looked at John Aaron's
affidavit. I mean I may have had her print it up and looked
at it, and then I dictated what I wanted my affidavit to
say, so I pretty much -- you know, I'm not going to say —
like, I may have kept the first three sentences that he said
or whatever. You know what I mean?
Q Yes .
A Whatever, but I dictated what I wanted to say.
Q And she did the typing?
A Uh-huh.
Q And you said that was this very same day. May 21st?
A That's correct.
Q Did anyone else review it before you signed it other
than yourself and your secretary?
A As I recall, I called Mark Bollinger to tell him
that I was going to go execute this at a lawyer friend of
mine's office in Georgia because I had called him up, and I
told Mark that I wanted to deliver it to him in Georgia, and
so he pretty much had to drop everything to meet me because
he had other plans because I'd just got on this whim of
going ahead and doing it, and he said he would meet me over
in Rising Fawn, Georgia, and he said, "Send me a copy," and
I think he made a grammatical correction as I recall, but I
don't remember what the -- if I put a colon or a period or
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what that he didn't think needed to go somewhere, and he may
have corrected a spelling on a word or something, but I mean
it was grammatical.
Q Did he make any substantive suggestions about what
should be or not be in the affidavit?
A I don't recall him saying there was a change on a
word. I do recall that he said for me to say — he said,
"How are they going to know that was Karl Rove?" And I
said, "Well, he just said, 'Karl.' He didn't say, 'Karl
Rove,' so that's what I'm putting." I do recall that. You
know what I mean?
Q Yes .
A And that's about it, so I didn't make the change.
Q Right.
A I do recall that he suggested a change that I didn't
make .
Q Did anyone else review it before you executed it?
A I don't know if he sent it to John Aaron, or not
because he had talked to John Aaron. Mark had done an
affidavit also, so --
Q But you never spoke to John Aaron about what should
or should not be in the affidavit that day?
A I may have got an e-mail after the fact, but I don t
recall speaking to John Aaron beforehand. John Aaron had
asked me several times on his original affidavit if I was
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going to sign it, and I said, "Well, that's really not what
happened, so I've got to write what happened exactly."
Q Okay. You went to Georgia. You executed it.
Did Mark Bollinger meet you there?
A He did, and on the way there, I called Richard
Scrushy's office and told them.
Q How did you get it to them?
A That was the agreement. Mark would meet me in
Georgia and take it to John Aaron, and Scrushy got -- I
called their office or his number or whatever — I don't
remember — and told him that I had decided to do an
affidavit and had done it because they had called several
times .
Q Yes. Okay. I have a couple of more questions about
a couple of things that have come up around the affidavit
that I'm going to ask, and then I'll be done and in plenty
of time for your 3:00 o'clock.
So, before I do that, though, I want to go back to
something that I think -- I don't recall whether or not -- I
want to make sure I understand your testimony correctly.
In late January/early February when you'd stopped by
Rob Riley's office and you'd talked to him, you described
somewhat the conversation you had about Alice Martin's
bringing a new case and Judge Fuller.
Was Mr. Scrushy discussed in that conversation?
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A He was.
Q Was the possibility of prosecuting him discussed as
well?
A Yes .
Q What was said about Mr. Scrushy in that
conversation?
A Rob said that they had come up with an idea to
prosecute Don with Richard Scrushy.
Q Did he say why they thought that was a good idea?
A Because nobody likes Richard Scrushy, and he thought
that that would assure a conviction for Don Siegelman.
Q Okay. Thank you.
You executed this affidavit back in May. It's been the
subject of a decent amount of public attention, and you've
had a good deal of time since then to think over these
matters and to talk about them with me and with journalists
and others. So I guess I wanted to ask:
At this point, do you still stand by everything that's
in your affidavit?
A 100 percent, yes.
Q Is there anything you'd like to correct or to change
that's in there that you don't think is correct?
A There's only one thing that I've figured out, and I
thought about it after I saw the videotape. I took two
cameras that day, and I have it reading like I gave them
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some pictures in one camera. I actually gave them two
cameras, and I don't know why my memory got jarred that day,
but I actually would -- I say in here that I took -- that I
had one camera, I think, and --
Q In paragraph 9, you say, "I took pictures on a
disposable camera."
A On a disposable camera. I should have said
"disposable cameras," but that's the only thing.
Q Okay. Is there anything else?
A No .
Q Okay. One thing that I've read are claims by some
that one reason you might have done this affidavit is that
you were, quote, "a disgruntled bidder on a tire contract."
I guess what is your — I suppose the simplest way is:
What is your reaction to that statement?
A Well, one, I'm not a bidder. Mr. Bollinger was a
bidder .
Q Okay. Did you represent him in the bid?
A I did.
Q Have you represented other bidders who don't get
contracts ?
A Yes. I've never done a statement on any of them
about something like this either, I can assure you.
Q Okay, but did the denial of that contract -- I mean
did it cost you money of income you might have earned?
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A It did. I get legal fees for the work that I do in
contracts, and you know, it just depends on what the legal
fees are set up to be per a contract basis.
Ms. Lynch . I'm not sure that actually responded to the
question .
BY MR. BRODERICK-SOKOL:
Q Is the implication of your statement that you might
have made money on this contract and that you didn't because
it was denied?
A That's correct. There is no way to know what a
contract like this would cost -- you know what I'm
saying? -- I mean whether you make in the end or not.
Q Sure .
A Sometimes you do when you do government bidding, and
sometimes you don't.
Q Sometimes a contract like this can go down, and the
bidder can lose money. Is that what you're saying?
A Right, and so --
Q Well, do you or Mr. Bollinger hold the rallies
responsible for his not getting that contract?
A Absolutely not. In fact, it's Don's people that
cost us, probably, the contract, Mr. Siegelman's.
Q It's Don Siegelman's? Why do you say that?
A It's Don Siegelman's people, the ADEM. The way they
do these ADEM committees
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Q What's "ADEM"?
A Alabama Department of Environmental Management.
Q Okay.
A They have a board of directors and all that that's
on it, and they had a lot of holdovers of Democrats, and in
fact, a Democrat lobbyist actually shepherded through the
guy who got the contract.
Q Okay.
A So, if I had any reason to be mad at anybody
we've really gotten a howl out of this one. If we had any
reason to be mad, I should be mad at Don Siegelman.
Q Okay. Did either you or the bidder have any --
well, have you had further dealings with the Riley
administration since that contract was denied?
A Yeah. In fact, I warned Bob. I sent him a letter
because the Democrats were going to put him on top of the
tire pile with the tire guy who was an illegal tire dumper,
so I warned him about it after the contract was awarded.
So, if I'd had a problem with Bob on that, I would not have
warned him, and he did not go. In fact, the newspaper
carried — it's kind of an interesting little story.
Q I think you should stop.
A Okay.
Q I'm not sure what question to ask, but can you just
describe it a little more simply for people who are not
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familiar? I'm not fully understanding --
A I gave you a copy of a letter that I sent to Don --
to Bob Riley on —
Q I just want a short description of the communication
you had with Bob Riley that you were just referencing that
saved him from an embarrassing appearance, I think.
A On August 7th of 2002, I called Bob Riley's office,
and I sent -- and talked to Toby Roth, and I sent him a
copy, and Mark Bollinger also called -- my boss that I was
working for, you know, doing the legal services, called Toby
also, and I sent him a copy of a document that showed that
the guy who they'd awarded the tire dump to had been
determined to be an illegal tire dumper in Georgia,
basically, and that he had actually illegally dumped the
tires in Alabama, and Bob Riley was supposed to, the very
next day, get out on top of the tire pile with the guy and
get his picture. There's a whole series of newspaper
articles where Bob Riley was supposed to go, and he failed
to show up. He took my advice, did not go, and did not get
his picture, and the series of newspaper articles in Alabama
was "Where's Bob?" Kind of like "Where's Waldo?" It was
where was Bob that day.
Q Okay. This occurred after the contract had been
awarded?
A Right.
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Q Okay.
A Then Mr. Bollinger — you know, I've read that so
much. Mr. Bollinger also threw a big reception for Bob with
another gentleman. I don't know what they spent, but they
had him a reception over in Guntersville . Well, I did not
get to attend that, but --
Q That was a fundraiser?
A A fundraiser after all this, too. So where all this
comes from, I don't know.
Q When you say "after all this," do you mean after the
contract was denied Bollinger participated in holding a
fundraiser for Governor Riley?
A He was -- he wasn't — he didn't participate. He
was the thrower. He and another guy threw the party --
Q Okay.
A -- for the --
Q Thank you. That's great.
A That's what they told me. I didn't see the checks,
but that's what they told me was they threw the party, so --
and I believe them.
Q Okay. I have two more questions. One is:
Has anyone offered you anything in exchange for
speaking out on this subject or for providing the affidavit
that you did?
A No .
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Q Three questions. Has there been any -- strike that.
Two questions .
Have there been any costs to you for speaking out in
this way?
A Absolutely.
Q And what have those been?
A Well, I had to pay my lawyers to come up here. I’ve
had to come up here. I had to buy my lawyers dinner last
night. I mean, you know, I've had to pay for the
phone calls that I've had with my lawyers. I mean, you
know, all my travel. I mean, it's just an expensive
endeavor .
Q Has it affected your business?
A It has dramatically affected my business. I mean
it's bad when you have — I mean my income's way off. I
have not done a percentage, but it's way off for the summer.
When you're called a liar every day in the newspaper, it's
pretty significant —
Q Okay. Is there anything else --
A -- especially when you're called a liar by powerful
people .
Q What about the personal cost to you? Has there been
any?
A I don't know if at this time, really, there is or
there isn't. You know, I've had some unfortunate events.
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but I can't say that any of those were caused by that. The
press tries to claim that, but I've told them, you know, I
don't know, but I have had some unusual events.
Q Okay. I was, actually, just thinking more along the
lines of the stress of it all, but --
A Oh, I want to tell you it has been very stressful,
and it's been difficult for my family. People have
challenged that we're Republicans. My mother was on some
kind of business council at some point where the President
would invite people, you know, to come up for dinners and
stuff like that, and she never came, but she got -- you
know, she always got the invitations and all that, and
people have said, you know, "Jo," they say, "you're not a
good Republican." I mean she had all kinds of awards in her
office, when she was an accountant, from Tom Delay, and I
mean -- and when I say "awards," you know, plaques and stuff
because Mr. Delay sent out a lot of that kind of stuff, and
so she -- it's caused her a lot of embarrassment.
My sister, she -- she loves the Bushes, I mean, and
always has. I mean she worked for Mr. Bush before he —
Ms. Lynch . I think we've reached the point where the
question is answered here.
The Witness . -- at River Oaks Bank and Trust, so --
Mr. Broderick-Sokol . Okay. I think I just --
The Witness.
and that's been hard on her, too.
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Mr. Broderick-Sokol . Okay.
The Witness . So, yes, it's been hard on my whole
family .
Mr. Broderick-Sokol . Okay. With that, I'm done.
Why don't we go off the record.
[Recess . ]
EXAMINATION
BY MS. LYNCH:
Q Let me just do a couple of like housekeeping
questions, and then we can move into some of the follow-up
questions I have on the phone call.
A That's okay.
Q Aside from Mr. Sandler and Ms. Duncan, are you
represented by any other counsel?
A No, I am not.
Q Have you been represented in the past year on this
issue by any other counsel?
A I talked with Tommy Gallion.
Q And how do you spell his last name?
A T-O-M-M-Y.
Q And his last name?
A It is Gallion, G-A-L-L-I-O-N .
Ms. Duncan . Yes.
BY MS. LYNCH:
Q Did you speak to him in reference to --
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A This case.
Q — this case?
A Yes, and some of his partners.
Q So was he providing you legal counsel?
A He was .
Q But he is not at this time?
A He — I have talked to Tommy, but right at this
particular time, no.
Q So you would not consider him to be retained as
legal counsel on this matter at this time?
A 1 talked to Tommy as late as yesterday, but
technically he is not my lawyer on this at this time, but he
has been.
Q So you spoke to him yesterday, but today he is not
your lawyer on this issue. Did you speak to him yesterday
about this issue?
A I spoke to him about this case yesterday, but he is
not technically my legal counsel.
Q Okay. Let me just refer you back to your affidavit.
A Okay.
Q You mentioned that you swore out this affidavit in
Dade County, Georgia. I'm not sure if you explained why as
opposed to in the counties that you practice in in Alabama.
A Well, I'll tell you why, because it said Leura
Canary's name in it, and it said Alice Martin, who are both
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powerful women in my state, and I knew that Rob Riley's
daddy had appointed the AG, who was Troy King, and that Troy
had had some issues about some political cases that he had
brought that Rob had told me stuff about, and so I decided
to go to Georgia to do my affidavit.
Q So you're saying if you'd sworn out the affidavit in
Alabama —
A I just didn't want to be subject to their
jurisdiction for any shape, form or fashion for any reason
whatsoever .
Q And swearing the affidavit out in Georgia --
A Would have brought different prosecutors to look at
this case, and I felt like I would get a fair shake from
that. I don't know a single solitary prosecutor in Georgia,
so that you know, either.
Q At whose office did you swear out the affidavit?
A I did it at John Emmett's office.
Q Who is John Emmett?
A He's an attorney that I know in Georgia.
Q Was he your attorney?
A No. I called John's office and asked his secretary
if — I did not even talk to John about this. I just asked
her if she would notarize my signature.
Q So it was notarized by his secretary?
A That's correct.
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Q Let's see. I'll ask you some questions now about
the phone call on November 18th, 2002.
You stated earlier today that you placed a telephone
call to Rob Riley, and it was during this telephone call
that you were put on speakerphone, and other persons were in
the room on the telephone call.
A Uh-huh.
Q In your affidavit. I'll refer you to paragraph 11 —
A Okay.
Q -- on the page marked "Simpson 2." It refers to
multiple phone calls --
A That's correct.
Q — between you and Rob Riley.
A It says there were multiple calls from me for — to
me from Rob Riley and other people. It does not just say
"Rob Riley."
Q Right. So when did these multiple phone calls take
place during that day? Were they before or after the
phone call described in paragraphs 12 and 13 and beyond?
A There was a call that I have from a guy who was to
pick up the pictures. I talked to Rob Riley that afternoon
at some point in time. He called me and told me to watch
the 6:00 o'clock news. Don would be conceding. I talked to
my girlfriend.
Q Okay, but I'm just curious about conversations
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between you and Rob Riley.
A Okay.
Q So you're saying, other than the phone call
described in paragraphs 12, 13 and beyond of your
affidavit --
A I had a couple of more phone calls.
Q You had a couple of more phone calls, and they were
after the phone call described in your affidavit?
A Yes, and I talked to one of my girlfriends who also
knows Rob. I talked to her about those pictures, too. So I
mean, you know, I talked to a bunch of people about the
pictures .
Q Okay. I'm going to also refer you to -- so,
actually, strike that.
As to the phone call that involved Rob Riley and, you
say, Mr. Butts and Mr. Canary and other individuals, what
time did that occur on November 18th?
A It occurred when I called Rob from my car.
Q And what time was that?
A It's 10:50. Right about 10:52, I think, is what the
time was on it. I mean I have to go by the record on what
it was, and it says "10:52," so --
Q I'll refer you then to Exhibit 4. This is the
telephone billing record for the phone -- actually,
899-3601. You indicated earlier today that the last
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phone call on that page dated 11/18 at 10:52 a.m. is the
phone call you're referring to?
A That's correct.
Q Can you explain to me why it reads one message for
11 minutes?
A I think what that is is these are the out-of-area
calls, and I have a cooperative phone — my cell phone is a
cooperative .
Q Can you, actually, answer the question of whether
you know why it says "message" or not, I mean, as opposed to
just speculating about how the phone company might bill? Do
you know for certain why it says "message"?
A I see those when I call out of the area.
Q So this is not a voice mail?
A That's not a voice mail, ma'am.
Q Okay. So, as to the phone call that occurred, as
you say, at 10:52 a.m. on November 18th, you stated earlier
that — I'm sorry. You placed a phone call to Rob Riley.
Is that how that phone call began?
A Yes, it is.
Q And so then what happened after that?
A People were added into the phone conversation.
Q By whom?
A By Rob.
Q Okay. So Rob put you on speakerphone or he dialed
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in other individuals?
A I know that Bill Canary was added. I do not recall
how. I remember the speakerphone was turned on when Terry
Butts and a roomful of people got in there.
Q So Bill Canary, as you said, is dialed into the
phone call, but Terry Butts is in the room?
A I can't say how Bill Canary was added on.
Q So he might have been in the room, but he might not
have been?
A I can't say, ma'am. I don't know. I wasn't in the
room. I just know he was on the phone.
Q Okay. That's fine. You did mention, too, that,
aside from Rob Riley, Bill Canary and Terry Butts, there
were other individuals who you could hear because you were
on a speakerphone?
A I recall when we were talking to Terry Butts,
particularly in my conversation with him -- Terry is more
entertaining. Bill Canary is more a businessman, okay?
Q Ma'am, if you could just answer the question.
A Sorry.
Q There were other people -- you could hear other
people in the room during that telephone conversation?
A Not on the telephone call, but in Terry Butts'
portion of it, when Terry started talking, yes, they started
howling, laughing.
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Q Could you tell how many people were in the room?
Was it two? Was it five? Was it ten?
A I have no idea, ma'am, but it was more than one.
Q In your affidavit, you've attributed certain
statements to particular individuals, whether it's
Mr. Canary, Mr. Riley or Mr. Butts. How were you able to
identify their voices?
A They're different.
Q So had you spoken to Terry Butts on the phone before
this?
A I had never spoken to Terry Butts on the phone
before .
Q When he was making the statements that you allege in
the affidavit, you are certain that you can’t attribute that
to any of the other people who were in the room at the time?
A I'm certain that that was Terry Butts or the person
talking identified himself as Terry Butts.
Q Had you spoken to Bill Canary on the phone before?
A Bill Canary had been on a phone conversation that I
had had with Rob before. I think he had actually been on
one or two.
Q Had he spoken during that telephone conversation?
A Uh-huh.
Mr. Sandler . Are you talking about the prior telephone
conversation?
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Ms. Duncan . Say "yes" or "no," please.
The Witness . Yes.
BY MS. LYNCH:
Q For how long did that conversation last?
A I don't recall. I just know that Bill Canary had
been on a couple of other calls before.
Q Did you make any notes about the telephone call that
occurred on November 18th?
A I was in my car, reporting the pictures. No.
Q So, later that evening or any time after that -- the
next week, the next month, a year later -- at no point did
you make any notes about the phone call?
A No, I did not, but I wouldn't have forgotten it
because it was an interesting phone call. It caused
Governor Siegelman to concede or at least that's what I
thought was going to happen.
Q You ve described several other conversations,
particularly with Rob Riley, after November 18th, 2002. I
guess the first question I have is:
How long have you been a licensed attorney?
A I have been licensed since May of '89.
Q Have you had occasion to assist a client with
preparing an affidavit?
A Yes, I have.
Q Okay. How many times would you say you've done
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that?
A I have no idea.
Q Less than six? More than six?
A A whole bunch.
Q A whole bunch? Okay.
A That would be the best way of saying that.
Q The telephone conversation — let's see.
There was, first you said, in late November/early
December a telephone conversation between you and Rob Riley
that was — for lack of a better word. I'll characterize it
as maybe a "follow-up."
A Not really. Rob and I talked regularly.
Q Okay.
A I mean it wasn't a follow-up.
Q But it was during that telephone call that you again
discussed Siegelman's conceding the election?
A Yes, ma'am.
Q Okay. According to what you said earlier,
apparently Mr. Butts indicated to Mr. Siegelman that on
November 18th that not only would the pictures and photos of
the Klan rally disappear, but also any future prosecution
would go away; is that correct?
A That's what I understood Rob to say that Terry
stated, yeah --
Q So your phone call --
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A — that Terry had told Rob that, yes.
Q And he had told that to Mr. Siegelman on
November 18th. That's your understanding from Mr. Riley?
A I understand that Terry told Rob that he did that,
yes .
Q So it wasn't just an issue with the KKK rally; it
was now an issue that all future prosecution would go away?
A Yes. Right.
Q Then there's a conversation in early 2005, which I
believe -- I just want to make sure my notes are correct on
this. This was a face-to-face conversation in Mr. Riley's
office?
A That ' s correct .
Q You mentioned that you had stopped by to show him
some baby pictures.
A Yes .
Q I'd just like to ask you a few questions about that
conversation. You say that — excuse me. I'm sorry. I'm
just reading my notes real quick.
You said that, I guess, Rob stated he had gotten wind
that Siegelman was going to run again --
A That's correct.
Q -- I assume, for Governor.
A Yes , ma'am.
Q
At this point, hadn't Don Siegelman been indicted on
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Federal bribery charges?
A He had had the Alice Martin case, and it had been
dismissed .
Q But he had been indicted on Federal charges?
A But it was gone from what I understand.
Q "Yes" or "no," he had been indicted on Federal
charges?
Mr. Broderick- Sokol. Well, maybe if you specify which
case or which court.
The Witness . I'm unclear.
BY MS. LYNCH:
Q Okay. Well, in the Northern District of Alabama in
which Alice Martin is U.S. Attorney, at the time that you
had this conversation with Rob Riley, Governor Siegelman had
been indicted in that case. Yes, the charges had been
dropped, but he had been indicted?
A Yes .
Q Were you aware of the fact that Governor Siegelman
had been indicted on those charges?
A I think so as I recall.
Q Okay. You said that Bill Canary and -- you know,
their names are so close together. My notes say Bob Riley,
but I'm not sure if you meant Bob or Rob.
A I meant Bob.
Q So you meant Governor Riley?
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A I did.
Q Okay. So you said that Governor Riley — or Rob
Riley told you that Bill Canary and Governor Riley had a
conversation with Karl Rove?
A That's correct.
Q And Rob Riley told you that Karl Rove then went to
the Public Integrity Section regarding former
Governor Siegelman.
A That's correct. He said "his section." That was
his use of it, but yes, ma'am.
Q In that same conversation, Rob Riley also said to
you that he or some group of people had come up with the
idea to prosecute Mr. Scrushy along with Mr. Siegelman, as
you put it, because everyone dislikes Mr. Scrushy; is that
correct?
A That's not exactly a correct characterization as to
the way you said it.
Q Why don't you tell me what Rob said to you regarding
that matter?
A That they had come up with the idea.
Q And who is "they"?
A I have no idea for certain. I mean I understood it
to be Rob and them, but -- and if I said that earlier,
that's what I understood, but he said "they" --
Q That ' s fine .
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A — which I understood to be Bob's bunch of close
folks .
Q But he didn't actually identify anybody. He just
used the word "they" to the best of your recollection?
A He may -- I understood he was in on it, but I think
probably he said "they." I mean I can't say 100 percent,
but —
Q Okay. So what did Rob say to you?
A He basically said that they had come up with an idea
to reindict Don and that they were going to include Richard
Scrushy, and they had figured out a way to do it, and I
basically asked them what was the way you're going to do it,
and I mean this is not verbatim, but I basically asked him
what way are you -- how are they going to do that, and he
proceeded to lay out to me the lottery issue.
Q I'm sorry. What is the lottery issue?
A Evidently, Don had some kind -- I mean and this is
just from my knowledge. This is not from -- but he did
explain to me the lottery issue. Don --
Mr. Broderick- Sokol . I'm sorry.
BY MS. LYNCH:
Q Who explained the lottery issue to you? Are we
still talking about your conversation with Rob Riley or are
you now referring to a different conversation?
Mr. Broderick- Sokol . I think you asked what was the
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lottery thing.
The Witness . That's what she did. She asked me what
the lottery thing is.
Ms. Lynch . Okay. Then that's my fault. What I'm
trying to do is --
Mr. Broderick-Sokol . I wasn't saying that. I was just
trying to retrace where we were.
The Witness . Rob explained to me that they had figured
out a way through the lottery circumstances -- and I don't
recall all the details -- but that they had a connection
with Don and Richard Scrushy on the lottery issue, and
that ' s --
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RPTS McKenzie
DCMN NORMAN
[3:33 p .m . ]
BY MS . LYNCH :
Q Okay. And what do you mean by the lottery issue?
What did you understand Rob to mean by the lottery issue?
A Rob made some mention that Don had gotten some money
from Richard Scrushy to pay off a lottery debt. That's —
and I don't know exactly -- I don't recall exactly all the
details as to what he said, but the gist of it was, is that
he got money illegally from Richard Scrushy.
Q I'm sorry. Who got money illegally from Richard
Scrushy?
A Rob implied that Don Siegelman had gotten money
illegally from Richard Scrushy. That's what his tale was.
Q Okay. And that was to pay off a lottery debt? That
was your understanding from Rob is it was a lottery debt?
A A lottery debt. I didn't understand all of it, you
know, but that's -- I didn't ask. It's not always good to
ask questions. I didn't ask that question.
Q I guess in that -- I believe it's in the same
conversation that you discussed Judge Fuller?
A It is .
0 Okay. And I'm a little unclear. Did you know Judge
Fuller from undergraduate or not?
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A I did not. They say I know who he is. That's what
Rob had kind of indicated. He said, oh, you know Judge
Fuller. I'm like, no, I did not. To my knowledge. I can't
say I never met the man because they say I have, but I don't
think so.
Q And at the time that you had this conversation with
Rob, was Judge Fuller a judge? Had he been appointed?
A Yes, he was a judge.
Q But you were not aware that he was a judge?
A I didn't go to the Middle District. Even though I'm
admitted in the Middle District, I went one time to the
Middle District out of my 18 years.
Mr. Sandler . Were you aware?
The Witness . No. I'm sorry.
BY MS. LYNCH:
Q So you discussed with Rob Riley government contracts
that Judge Fuller had?
A Yes .
Q Is that correct? I think you mentioned that they
were fuel contracts or maintenance contracts or clothing
contracts. Could you explain a little bit more when you say
that Fuller had these contracts, what do you mean? Did he
personally hold government contracts?
A He had a corporation.
Q What was the name of that corporation?
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A It was called Doss Aviation, and he also had one
called Doss of Alabama. But I don't think that I
realized -- I think I knew about the Doss Aviation. But
until I ran him, I don't think I knew that -- I thought that
the clothing was made under Doss Aviation because it was
flat suits, as in
Q Okay.
A But it's got two names.
Q Doss Aviation?
A And Doss of Alabama. We actually talked about that
company, too, that day, Doss Aviation.
Q And could you just explain for me a little bit about
how Judge Fuller's ownership or, you know, involvement in
Doss Aviation was discussed in relation to Mr. Siegelman or
Mr. Scrushy or your previous telephone conversation? Just
connect the dots for me, if you would, please.
A Okay. In that conversation in early 2005, Rob
started talking about Mark Fuller. And I'm like. Where have
I heard that name? Because I'd heard it before. And he
tells me, he says that Mark was going to be the judge. He
said. Oh, you know him. I'm like. No, I don't. He said, I
think you do. I said. Is he that guy y'all said before that
does them aviation contracts? And that's when he proceeded
to say, Yeah, he has a company called Doss Aviation. I
said. Is he still doing that since he's become a judge?
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Something along that lines I can't say verbatim, but
something along that line. And he said. Oh yeah; and he
proceeds to start telling me about the company.
Q So in that conversation, Rob told you that Judge
Fuller was going to be the judge on a case prosecuting
Siegelman and Scrushy together?
A That's what I understood.
Q Let me just back up a second and do a couple of
questions on -- for both this conversation that you had face
to face with Mr. Riley and for the telephone conversation
that was in either late November or early December of 2002,
did you make any notes of either of these conversations?
A No. I never made notes of what I talked to about
Rob. We were just gossiping. So --
Q Okay. So anything that you're describing to us is
based just on your recollection today? You don't have any
notes that you made at the time that the conversations
happened or anything like that?
A No. But I -- the thing is this: I've never forgot
about Mark Fuller because he --
Q Okay. That's fine. You are basing this off of your
memory today as opposed to any notes that you made at the
time?
A I didn't make any notes at the time.
Q Okay. Fine. I guess I'm curious to know that.
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aside from the conversation described in your affidavit, you
have had -- you've described today now two subsequent
conversations with Rob Riley where it is, at a minimum,
implied that there was -- first in the conversation of late
November, early December 2002, that Mr. Butts had maybe not
guaranteed but had made some assurance that Siegelman would
not face any prosecution if he conceded the election
challenge?
A Yes .
Q So that's the first conversation. And now in early
2005 you have a face-to-face conversation where Rob Riley
makes statements to you that there has been planning as to
how Mr. Scrushy and Mr. Siegelman would be prosecuted, that
he was aware that Judge Fuller would be the judge on the
case, that Judge Fuller had made a statement that he was
going to hang Don Siegelman.
I'm curious to know, did this trouble you at all?
A It did.
Q So what did you do in response to this? Did you —
A I told Rob at the time that I did not think, just so
you know, that Don Siegelman and them, their bunch, I said.
They'll probably file ro get him out. Rob said. Well, I
don ' t know .
Q They'll — I don't understand what you mean by file
to get them out.
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A Rob told me all these things about Fuller, and that
he thought Fuller would be the judge. I told him I did
not -- I figured they’d file objections or something like
that. So I didn't know.
Q Okay. That's not responsive to my question. My
question is, my question is, first of all you say that you
were troubled by the things that Rob Riley was telling you.
A Yes.
Q You've been a practicing attorney for nearly 20
years. And according to you, someone has just made
statements that there is some sort of planning or, you know,
cooperation going on in relationship of how the former
Governor of Alabama was going to be prosecuted.
And I'm asking you, did you report this to the Alabama
State Bar, did you make any notes of it, did you feel that
there was any duty on your part as a licensed attorney to
report this conduct that we're now just hearing about for
the first time today?
A Rob had told me what I considered to be hearsay. I
had not -- as far as regards to those things. And I had not
checked them out.
Q So you're saying that because you could not
substantiate statements made by Rob in these conversations,
you felt that you shouldn't report those to the Alabama Bar.
Is that what you are saying?
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A Right.
Q The statements made in your affidavit that you
report the conversation of November 18, 2002, would you also
characterize those as hearsay?
A I would not characterize them. I was on that
conversation .
Q But Terry Butts in -- let's see. I'll get you the
paragraph here. In paragraph 16 on what's marked as Simpson
3 of — Exhibit No. 3, your affidavit characterizes the
conversation as -- and I'll quote this: That William --
Bill Canary told him not to worry, that he had already
gotten it worked out with Karl, and Karl had spoken to the
Department of Justice and the Department of Justice was
already pursuing Don Siegelman.
Would you not characterize that — the conversation,
the alleged conversation between Mr. Canary and Mr. — or
the person referred to as Karl as hearsay?
A It is hearsay.
Q Did you make any efforts to substantiate that
statement before reporting it in your affidavit?
Mr. Broderick- Sokol . Are you asking about hearsay as a
technical, legal, would it be admissible in court matter?
Ms. Lynch . No. What I'm asking is that she has just
stated that the reason why she didn't report any of the
subsequent conversations between her and Rob Riley to the
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Alabama Bar or anybody else, despite being troubled by them,
is because she characterizes them as hearsay. I'm now
pursuing the fact —
The Witness ■ I cannot say whether they were true or
not. These were just the statements made.
BY MS. LYNCH:
Q But could you say whether the conversation that you
characterized in paragraph 16 of your affidavit is true or
not?
A It is true as to what Bill Canary said on the
telephone. And what I understood that I have testified to
is truth as to what the man meant. As far as whether Karl
Rove said this to Bill Canary or Bill Canary said that, I
can't say, and I wouldn't attempt to say.
Q So you have no personal knowledge of whether Karl —
the person named Karl who you assumed to be Karl Rove --
ever made statements to Bill Canary as they are
characterized in your affidavit?
A You said I have no personal knowledge. I know that
Bill Canary said that.
Q No, ma'am --
A No, you said that. And I know that Bill Canary said
it. So I do have personal knowledge, ma'am.
Q No. You have personal knowledge. Excuse me. And
what I asked you was whether you had personal knowledge of
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statements made by Karl Rove to Bill Canary. Do you have
any personal knowledge of a statement made by Karl Rove to
Bill Canary?
A I know what Bill Canary said on the phone.
Q That's fine. Other than what you say was said in
the telephone conversation, do you have any personal
knowledge of statements made by Karl Rove to Bill Canary?
A I know what Bill Canary said to those statements. I
mean, that's an answer.
Mr. Broderick-Sokol. Are statements made —
The Witness . I mean, I can't say what Karl Rove and
Bill Canary talked about.
Ms. Lynch. That is exactly what I'm getting at.
Ihe Witness . I can only say what Bill Canary said that
Karl Rove said.
Mr. Broderick-Sokol . Bill Canary could be lying, for
example, when you heard them. You don't know about other
things that happened outside your presence.
The Witness . I can only state what people said.
[Discussion off the record.]
BY MS. LYNCH:
Q I would like to just get back to what we were
discussing a moment ago. Can you explain to me why, when
you swore out this affidavit on May 21 of 2007, you included
a description of a conversation from November 18 of 2002 but
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did not include subsequent conversations that you have now
described today that you claim were very troubling to you
and that had relationship to the Siegelman-Scrushy
prosecution. Can you explain that, please?
A I can explain that. I told them I did not want to
do an affidavit against a Federal sitting judge. In Alabama
we have some ethical rules that we are not supposed to talk
badly about the court. So I told them I just would not sign
an affidavit about that. They asked me to limit it solely
to the day of November 18 and the phone call. And so --
Q Who asked you to do that?
A I'm not sure. I think John Aaron had talked to
someone. You would have to talk to him. But John Aaron, I
told him I would not do the affidavit on Judge Fuller
because we had those ethical rules about talking badly about
a judge, and I just wasn't going to do it. Even though I
thought what he had done was right, I wasn't going to do it.
Q I'm sorry. So are you saying that the ethical rules
of Alabama place the position of a Federal judge above
reporting suspected collusion on the part of a Federal judge
in a case, or possible misconduct by a Federal judge? I
mean, I am just curious to know what the ethical rules
require in Alabama.
A We are not supposed to disparage the court, and I
was not going to participate in disparaging the court. And
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I was not required by law. If they subpoenaed me, I would
testify as to what the conversation was, and that's what I
told them.
Q Aside from your concern about your ethical duty with
regards to Judge Fuller, you have described today a
conversation with Rob Riley where he, according to you,
implies that Scrushy and Siegelman were intentionally
prosecuted together to get Governor Siegelman. Why
didn't -- that doesn't have anything to do with Judge
Fuller, so why didn't you report that?
A Well, the thing is this, is Rob Riley told me that.
I didn't know if that would really happen or not. I didn't
know if that was truth or fiction.
Q And so --
A And I had -- after I watched it play out, I realized
it was. But 'til I saw it, I didn't know if it was true. I
didn't know Mark Fuller. So I didn't know if —
Q I'm going to object to that response, that there's a
connection between that statement and the fact that they
were tried together is proof of the statement. I mean
that —
A I don't think you can object. I think this is a
sworn statement. I don't mean to be ugly, but I've told
you --
Q I'm sorry, but there was --
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A This is not something you can object to, ma'am.
This is a sworn statement we're taking.
Mr. Sandler . Just wait a minute.
Lynch . I just take issue with the speculation that
the fact that Siegelman and Scrushy were later tried
together is proof of the --
Mr. Sandler . I don't think she said that.
Mr. Broderick-Sokol . She believes it's true.
The Witness . After watching it happen, but I did not
know .
• Lynch . Could I ask the court reporter to read that
back to us?
[The reporter read back the question.]
Ms. Lynch . So I'm not sure if I — I'll just ask the
question again since I interrupted the answer the last time.
BY MS. LYNCH:
Q Why did you not either report to the Bar or include
in the affidavit the statement by Rob Riley that both
Scrushy and Siegelman would be tried together -- I think as
you said it -- because a lot of people disliked Mr. Scrushy,
and this was a way to get Governor Siegelman? Can you
explain why you didn't report it to the Bar or include it in
the affidavit?
A Rob said that was the plan. I didn't know if that
was true or not. But I -- and so I didn't report it. I
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mean, you know, that’s what he told me,
Q And why was that statement alone not enough to cause
you -- you know, did that not cause you concern?
A He said that -- in that conversation, he said that
he believed they were going to be able to prove that
Mr. Scrushy illegally gave money -- just like I said when I
answered his -- to Mr. Siegelman. That's why it didn't
cause me to pause. I mean, if they could prove a criminal
act, I had no reason to report it to the Bar. But I mean,
it concerned me about Fuller, and I told Rob, I said in that
conversation, and I said. You know, I don't think Fuller can
hear that based on the facts he told me. He said. Oh, we'll
see. And that was basically it.
Q Okay.
A I didn't know if there was anything ethical bad or
not. If they're guilty?
Q So it -- strike that.
A This is not a strike, is it?
Mr, Sandler . Wait for questions.
BY MS. LYNCH:
Q I was striking me saying the word "if".
A Okay. That's what I was trying to figure out. I'm
sorry. I was trying to figure out, is she striking
something I said or not? Anyway.
Q Okay. I'm going to fast-forward a little bit to, I
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guess, February of this year. We earlier admitted or marked
Exhibit 6, which is a DVD videotape of the KKK rally.
A Yes .
Q And could you just remind me again, when did you
receive that?
A A couple weeks ago. I can't say exactly how long
ago, but I mean it has been within the last month.
Q Okay. So maybe let's just say sometime in mid- to
late August or early September of 2007 is probably when you
received it?
A That is correct.
Q And you have said that you received it from I guess
what we'll just describe as like an anonymous source who is
associated with the -- I'm sorry. Which police department
is it again?
A Scottsboro.
Q Scottsboro Police Department.
In describing a telephone call with Mr. Art Leach, who
I believe is one of Mr. Scrushy's attorneys, you said that
you described to him the KKK rally and the telephone call of
November 18 to him on the phone. And it was in that
conversation where he asked you if there were other things
that you knew about. And I believe what your answer was,
was that you didn't feel comfortable telling him about
anything to deal with Judge Fuller because you couldn't
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document it, you couldn't corroborate it?
A 1 didn't tell him anything about Judge Fuller at
all.
Q The reason why you did that is because you didn't
feel comfortable doing it —
A I didn't know if it was truth. I didn't know Mark
Fuller at all. I just knew what Rob had told me.
Q But you stated earlier what you did mention to
Mr. Leach at that time was that there were videotapes of the
rally, and you knew of those videotapes?
A I told Mr. Leach that I knew of pictures, and I may
have mentioned -- I knew of pictures and who had pictures.
And I probably told him that I saw video people that day --
as I recall I told him that -- but I did not know who they
were .
Q So you — while you were taking pictures at the
rally, you saw people videotaping the rally?
A Right. But -- and I think I also told him that I
thought that the Klan Watch people with Morris Dees
videotapes all things, all Klan things. But I didn't know
any video -- who the videotapers were.
Q You also mentioned — I apologize if I'm jumping
around. I'm just kind of going through my notes. But you
said that you were reluctant — you didn't want to do an
affidavit .
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A I didn’t want to do an affidavit.
Q Right.
A And that’s why I researched that judge so
extensively .
Q Can you explain to me, I guess, why did you not want
to do an affidavit but you felt comfortable doing extensive
research on a Federal judge and putting a letter on --
writing a letter to, I guess, Mr. Leach on your letterhead
about that judge?
A I -- well, that's a good question. But the thing is
this, is here's where I'm at. I tell Joe Espy my story.
Basically Joe Espy tells me I have an ethical duty, he
thinks. I call the board to check out if I have an ethical
duty. I talk to Art Leach, who basically wants me to do an
affidavit. I knew the Bar had told me I had an ethical
duty, I knew I knew those things on Judge Fuller. So I
decided to tell Art Leach that. And my thinking at the time
was that if I gave them all the facts, maybe they wouldn't
include me. And when I met with them the first time --
because I met two times with Scrushy's bunch -- I said,
Y'all go after the judge. Y'all don't have to have an
affidavit from me. And that's what I did. And here’s the
stuff .
Q So your thinking at the time was that — I don't
want to misspeak for you, so please correct me if I’m wrong.
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But you didn't want to have your name associated with the —
you know, the telephone call and what was later put in your
affidavit. Is that what you were reluctant to do?
A I didn't want to get involved in this, but I had
gotten involved. I had, unfortunately, stepped into it in
the fall when I told Joe Espy about those pictures, and then
when he asked me about those pictures further, and I
didn't --
Q If you didn't want to be involved, why did you
do rather extensive research on Judge Fuller?
A I realized after I talked to the Bar that if they
were going to subpoena me one way or the other, and I knew
that about the judge, and I thought that if they would take
the information that I had about the judge — let me answer
— I thought if they would take the information that I had
on the judge and file something, I might not ever have to do
an affidavit. So I gave them everything I knew on the
j udge .
Q So your thinking was that — you were going to be
subpoenaed by whom and for what case?
A In Mr. Scrushy's case, probably.
Q Because of the information that --
A On the telephone. But when I gave them the judge,
they went after that full speed and left me alone 'til the
judge didn't rule on their behalf. And then I realized I
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was going to be back involved in it.
Mr. Bollinger went ahead and gave an affidavit, because
I had told him 2-1/2 years ago. Mark had been the executive
assistant to the Attorney General.
Q Okay, let’s stop right there. I'll come back to
Mr. Bollinger.
A Okay .
Q So I'm a little confused. I just want to clear this
up. That you did the research on Judge Fuller and wrote a
letter to Art Leach, who was Mr. -- one of Mr. Scrushy’s
attorneys, because you've -- I guess I'm confused on what —
for what reason you thought that Mr. -- or, excuse me, on
what reason you thought you were going to be subpoenaed.
You presumed you were going to be subpoenaed about the
telephone call?
A Yes. From just things that had been said. And I
wrote this -- if you read this letter, I wrote it as
though -- I didn't tell them I had personal knowledge on it.
I wrote it as though I didn't, because I didn't want them to
say. Well, how do you know this? And I was real careful not
to indicate any personal knowledge. And I thought if they
got sidetracked on that, they'd leave me alone.
[Discussion off the record.]
BY MS. LYNCH:
Q So I guess I'm still -- I'm having a hard time
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understanding —
A I've answered this half a dozen times. I can't make
you understand. I don't mean to be ugly, but I can't.
Q With all due respect, let me just try one more time
and then we'll move on. Okay. You have expressed an
ongoing reluctance to put into an affidavit the telephone —
the telephone call of November 18, 2002. And you have said
it's because you did not — you just didn't want to be
involved, and you didn't want your name associated with it.
You didn't want to be involved in this at all, which I can
appreciate. But I have to say I'm having a hard time
correlating that to the fact that you then took it upon
yourself to do research on a Federal judge and then, you
know —
A I wanted them off me and I wanted them on him. I
just wanted them off me. And it's like me telling you your
dress is ugly, you know what I'm saying, when you're asking
me a question I wouldn't necessarily want to answer. I just
thought I would distract — I would just give them the
judge .
Q You were giving them something in exchange for maybe
not doing the affidavit or to avoid having --
A No, ma'am. They did not ask me to do that. I
just — I mean, out of the blue, it's just like you
saying -- you asking me a question I don't want to answer;
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oh, by the way, your dress is ugly. I just distracted them
from me when I sent that was my thinking at the time.
Q Okay.
A And I knew about those facts, I mean, but I was just
trying to throw them off onto something else and get them to
leave me alone.
Q Were you concerned at the time that drafting that
letter might involve you in how they would use the letter?
And just for the record, I'm referring to the letter --
A When I wrote the letter, I wrote it as general as
possible without saying. This is what I know. You know -- I
just wrote them. You need to — you need to know the
following facts.
Q That's fine. So I guess what I'm asking, you
weren't concerned that you might somehow become involved in
what they would do with this information?
A I was already concerned that I was involved and they
weren't going to let go of me, you know what I'm saying?
Because they -- the Bar had told me I had to report this.
Q In regards to this letter, which is Exhibit 7, dated
February 15, 2007, to Art Leach, I believe you mentioned
earlier that you asked Mr. Bollinger -- is it Mark, is that
his first name?
A Yes .
Q You asked Mr. Bollinger to run some sort of
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financial?
A An AutoTrack?
Q An AutoTrack. Mr. Bollinger is a client of yours?
A Dh-huh.
Q And you asked him to run a financial track on a
Federal judge; is that correct?
A Yeah.
Q Okay. And --
A After —
Mr. Sandler . There's no question. Don't answer.
BY MS. LYNCH;
Q And you also said that Mr. Bollinger said to you
that he was the person who, I guess, made the initial
contact with Mr. Siegelman. Did you have a conversation
with Mr. Bollinger — he says, I'm going to call
Mr. Siegelman?
A No. I told Mr. Bollinger about -- I wanted an
AutoTrack. Mark Bollinger, after he ran the AutoTrack,
talked I told him he asked me why I was running it.
And he called Don Siegelman on his own accord, not at my
recommendation .
Q i think you said earlier he told you he was going to
call Mr. Siegelman. So were you aware that he was going to
call him?
A No. Mark Bollinger called Don Siegelman and then
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called me at my home, just like I told this gentleman down
here. And the thing is that is when he called me at my
home, he told me that Don Siegelman was going to be calling
me, and I'm like. Why, you know, is he calling me?
Q Okay. So how well do you know Mr. Bollinger?
Obviously he's a client of yours. But how long have you
known him?
A Approximately 3, 3 1/2 years.
Q And is that the -- a length of time that you have
represented him?
A Yes. I've known of him probably 15 years, because
his uncle is an investigator, but known him 3, 3-1/2 years.
You know what I'm saying. So of him is a different story.
[Discussion off the record.]
BY MS. LYNCH;
Q So you just stated that you've known Mr. Bollinger
for about 3-1/2 years?
A Really known him, yes.
Q Really known him. Okay. And he is, I guess, the
CEO of --
A Global Disaster Services.
Q Thank you. Global Disaster Services.
Have you ever been employed by Global Disaster
Services?
A I do work for them.
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Mr. Sandler . You said "employed" as opposed to being
retained?
BY MS. LYNCH:
Q In something other than -- you said you have your
own law practice and one of your clients is Global Disaster
Services. But have you ever been on -- aside from being
paid legal fees, have you ever been on the payroll of Global
Disaster Services?
A I have never received a check from Global Disaster
Services .
Q Okay.
A Wait. I take that back. He might have written one
$1,000 check one time to my secretary. So -- but it wasn't
to me. And he may have paid a copy cost. But to me as a
fee, I have never received a fee check from Global Disaster
Services .
Q And so you've known him for 3-1/2 years, and is that
how long you've represented the company?
A No. I formed the company for him. I did the
company for him on -- in August, I think, of 2005. I'm not
certain the date. But I did — I did a corporation for him,
but I —
Q Okay. So you've known him a little bit longer than
the corporation has been in existence.
A I do want to say on the record, in case anybody
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reads this, Mark Bollinger has said I can talk about what
we're here on. He gave me the right to send the paperwork
that I sent y'all. So that anybody who reads that
understands I'm not — I'm not telling anything Mark didn't
tell me would be okay.
Q So you mentioned that — so Mr. Bollinger contacted
former Governor Siegelman after having a conversation with
you and running this financial track?
A Yes .
Q And then also later —
A And I was not happy that he did that.
Q And subsequent to that, you had a conversation again
with Mr. Siegelman while he was at Mr. Bollinger's house?
A That is correct.
Q That's correct? Okay. So if you know, how would
you characterize Mr. Bollinger's relationship with
Mr. Siegelman? I mean, are they friends? Are they --
A I think they knew each other when Mark was in
Montgomery. I never heard of Don Siegelman coming to Mark's
house. But he showed up at some point in April or May or
March wanting me to go to the Artur Davis deal.
Q That was of this year?
A That was of this year, and they called me.
Q What was -- you said the Artur Davis deal. Was that
a meeting or a fundraiser or --
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^ I think it was some kind of — I think that they
were having some kind of fundraiser. But I don't know. I
don t even know that Artur Davis was there. I just know
that somebody was having a political thing and Artur Davis
was mentioned of having been involved in whatever kind of
deal, because they told me they were going to that
fundraiser or event. And I don't know, I don't think Mark
went. I think Siegelman did. But you'd have to ask him. I
just — Siegelman just showed up at his house or his office,
and I think he showed up at his office. I think I told him
that earlier. It was either his house or his office.
Q Okay. Let's see. Just a few more questions
about -- on the affidavit and when you actually completed it
on May 21, 2007.
You stated earlier that you ultimately did swear out
the affidavit because you thought it was the right thing to
do. Can you expand upon that? Why then, why suddenly May
21, 2007, did you think it was the right thing to do?
A I will tell you, I researched Fuller, you know, when
Art Leach asked me, 'til the point of really looking up what
Rob said about Fuller. I didn't know if that was true or
not. Once I did the research on it, just as far as pulling
those particular facts up, I realized we had a problem with
a Federal judge, because I don't think our Federal judge
should be
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Mr. Sandler . Wait a minute. Wait a minute. She asked
about the affidavit.
BY MS. LYNCH:
Q I'm asking about the affidavit.
A I know. But this is part of it. I did not think
that what he was doing was right, being a Federal judge and
being in a closely held corporation for a Federal judge in
government contracting was right. Additionally, I watched
him when they sealed -- they filed — Mr. Scrushy's team,
when they filed the paperwork.
Mr. Sandler . When you say "paperwork," are you talking
about the motion to recuse?
The Witness . The motion to recuse. He sealed the
evidence, and I read the papers where he got out and spoke,
but had them sealed where they couldn't speak, and the
prosecutor spoke. And I just thought that this is not
right, and I went ahead and I did the affidavit on the phone
call. But I still would not do it on the judge because I
was -- I knew that you're not really supposed to say
disparaging remarks about judges. And I told them at the
time, I will do this affidavit and if y'all subpoena me, I
will answer the questions on the judge. And that's what I
told them.
Q So you were prompted to swear out an affidavit about
the phone call based upon --
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A I wasn't prompted by anybody.
Q You were self-prompted. You yourself felt compelled
to swear out the affidavit, finally --
A I felt that it was the right thing to do.
Q Can I please finish my question? Thank you very
much .
You felt it was time to swear out the affidavit about
the telephone call on May 21, 2007, because of the
increasing it sounds like you were having increasing
concerns about Judge Fuller on — and I'm curious to know,
at what point does this ethical rule that Alabama has about
not speaking disparagingly about a judge become superseded
by concerns you have about a judge? I mean, you've
described several different conversations, or learned of
several different things involving Judge Fuller —
A I don't understand your question because you've said
so much. Give me a question, and I'll answer it.
Q All right. The first question is, I don't
understand how concerns about Judge Fuller prompted an
affidavit about the phone call. Can you explain that
connection to me?
A Say that one more time?
Q That concerns about Judge Fuller and his role in
this case, as I believe you said a few minutes ago, was
what
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A Well, that —
Q That prompted you to ultimately do the affidavit?
A That is one part of it. Mark Bollinger also swore
out an affidavit in addition, and he did it before I did it
and telling what I had told him about this . And I knew that
I was going to be in court anyway, and I'd rather get my
whole story out as to exactly what had occurred, because I
never have seen his affidavit. I don't know what he said at
this point, still.
Q Okay.
A So —
Sandler . Hold on a second.
The Witness . It was the judge and Mark Bollinger doing
the affidavit. It was both things.
BY MS. LYNCH;
Q That's fine. We'll just clarify that it was a
combination of --
A It was a combination of things.
Q Mark Bollinger swearing out his own affidavit, okay,
that ultimately prompted you to --
A I've never seen his affidavit. They say he's done
one, but I don't even know if he has because I haven't seen
it. But he told me he had done one for Don Siegelman, and I
think that's why Don visited him.
Q That's fine. That's fine.
And I'm sorry if I'm
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repeating myself. I just want to clarify one last time, and
then we'll move on, that you did not include any information
about Judge Fuller in your affidavit because you felt that
it would have been in conflict with ethical rules about how
to deal with a judge. Is that a fair characterization?
A I did not want to put a judge -- if anybody was
going to question me about a judge, they were going to have
to subpoena me. That's how --
Q So you didn't want to put anything about Judge
Fuller in writing?
A That's exactly right.
Q And you stated earlier that after the affidavit was
completed, that Mark Bollinger met you at the attorney's
office in Georgia?
A No, he did not meet me at the attorney's office.
Q Where did he meet you?
A I was in Trenton, which is where I did the
affidavit. But I got done 30 minutes before -- 15 to 30
minutes before he did. And there's a town called Rising
Fawn. He met me at Rising Fawn, Georgia. He came a
different way than I'd come.
Q That's fine. That's fine. So did you -- I guess --
strike that.
Why was Mark Bollinger, I guess, the first person that
you gave the affidavit to?
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A Mark had told me he had done an affidavit for Don.
Q For Don --
A Siegelman.
Q Siegelman. Just wanted to make sure.
A And he said that — and he had told me that. And so
anyway, I called him up and just said, I'm going ahead and
doing an affidavit if you've already done one. And I went
ahead and did my affidavit. And anyway, I told him that —
I said. Since I'm doing my affidavit, I want y'all to pick
it up in Georgia. And I mean -- and that's the case.
Q Did you have an -- did you have an idea of what
would happen to it after Mark Bollinger picked it up? Did
you know who he was going to give it to or where he was
going to take it?
A I called Richard Scrushy because Mark told me on --
when I called Mark, Mark told me that he would come pick it
up, but he wasn't taking it down to Birmingham. And I
called Richard Scrushy 's office, because I had left a
message that I was going ahead and doing the affidavit that
day before I left, and -- or had done it for John Aaron, I
think, but I'm not sure. And anyway, the thing is this, is
I talked -- ended up Richard answered, and I don't know, I
think I called the cell phone that they pass around in that
bunch -- but I ended up with Richard Scrushy and he said
that he had -- he would get ahold of John Aaron, and John
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Aaron would get it from Mark.
Q So your understanding is that Mark would give it to
John?
A Aaron?
Q Aaron.
A I was trying to call John Aaron but somehow got
Richard --
Q So your understanding is that you gave the affidavit
to Mark Bollinger, who in turn would give it to John Aaron,
who would then in turn give it to Richard Scrushy?
A And also to Don Siegelman.
Q And also to Don Siegelman. So is it your
understanding that Mr. Aaron would deliver it both to
Mr. Scrushy and Mr. Siegelman?
A Yes .
Q Okay.
A In fact, I sorry. It’s tempting. But I mean, I
know. Strike that "in fact," I guess.
Mr. Broderick-Sokol^ We’ll do the open mike session at
the end.
Mr. Sandler . Exactly,
[Discussion off the record.]
BY MS. LYNCH;
Q Did you give a copy of your affidavit to members of
the press?
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A No.
Q Do you know how your affidavit ended up with members
of the press?
A I have absolutely no idea. I think -- I know who I
gave it to, but I mean as far as knowing how the press got
it, I have no idea how they delivered it to them.
Q I know there have been some press reports that are
focusing a lot of attention on the portion of your affidavit
that refers to Karl. And I apologize, I don't have the news
article in front of me. But I guess one -- strike that.
Let me ask it this way: Why did you ultimately swear
out the affidavit? It’s my understanding that there was
concern -- your initial or your primary concern —
A I've already stated that and answered that like 10
times. I don't mean to be ugly but —
Q I'm going a different -- it may sound like I'm
starting the same, but I'm going on a different track.
It's my understanding that you initially swore out the
affidavit out of concerns about a possible conflict of
interest on the part of Terry Butts?
A I did state that, but it disturbs me also about
Terry Butts.
Q Okay. But so would it be -- is that the primary
reason why you swore out that affidavit or is it just --
A That wasn't the sole reason.
160
140
Q Okay. So the information in the affidavit about a
conversation with Karl and the Justice Department was also a
reason for swearing out the affidavit?
A They asked me to do an affidavit on a particular
date on a particular set of events that had happened.
That s why I did -- I mean, I've told you the reasons
already. But the thing is this, is that is the reason for
the specifics of that affidavit is I detailed out what
occurred in that phone call.
Q Okay. And just to clarify again, that they would
be —
A Mr. Scrushy's legal team and then Don Siegelman
asked me, you know, on that first phone call.
Q Okay, let's see. I guess just a couple more
questions .
Aside from the telephone conversation that you outline
in your affidavit on November 18, 2002, do you have any
personal knowledge of communications between the White House
or the Department of Justice and — well. I'll start first
with acting U.S. Attorney Louis Franklin.
A Do I have knowledge about Louis Franklin talking to
the White House?
Q Uh-huh.
A No .
Q Okay, that's fine. I'm not looking for anything
161
141
more than that.
Do you have personal knowledge of any communications
between the White House or Department of Justice and
Assistant U.S. Attorney Steven Feaga. Let me spell that
last name. F-E-A-G-A.
A No .
Q And do you have any personal knowledge of
communications between the White House or Department of
Justice, again specifically regarding the Siegelman-Scrushy
prosecution with U.S. Attorney Leura Canary?
A Ask that question one more time so that I can hear
that question.
Q Personal knowledge of communications between the
White House or the Department of Justice regarding the
Siegelman-Scrushy prosecution with U.S. Attorney Leura
Canary?
A I know that Rob told me in that conversation --
• Duncan ♦ Personal knowledge.
Mr. Sandler . Personal knowledge.
The Witness . No.
BY MS. LYNCH:
Q And I would ask the same question, too, of personal
knowledge of conversations between the White House or the
Justice Department and Governor Riley.
A All I know is what Rob told me. So, no.
162
142
Mr. Broderick-Sokol ■ Limited to the
Siegelman-Scrushy --
BY MS. LYNCH:
Q For the Siegelman-Scrushy prosecution.
A I just know Rob told me. But as far as if that
counts as personal knowledge — but I did not hear a
conversation of Bob Riley talking, Bob Riley talking. Bob
Riley did not tell me that.
Q Well, I think that's it for me.
Mr. Broderick-Sokol . I have no redress. Do you have
anything?
Mr. Sandler . You said Ms. Simpson, as the Chairman
said, will have an opportunity to review the transcript
before it's released to the members of the committee, I
guess, for purposes of the investigation?
Mr. Broderick-Sokol . I think that would be released
outside the committee,
Mr. Sandler . Okay.
Mr. Broderick-Sokol . I don't think we can agree to
keep it from members of the committee.
Ms. Lynch . We can't keep it from members while you
edit it.
* Broderick-Sokol , And we can — and really that
will depend -- getting the corrected version, that will
depend on how quickly you guys get it back with those
163
143
corrections .
The Witness . Like I said, I flip-flopped. And it
might not be bad to go ahead and state for the record I
flip-flopped at Perry Hooper from what my lawyer tells me
was a Democrat. I was nervous at the start. He's not a
Democrat .
Mr. Broderick-Sokol . It's down now. You can send that
page .
[Whereupon, at 4:30 p.m., the committee was
ad j ourned . ]
164
JCHROLD NAOt^ Nm York
ROBEilT C. 'BOBBY* SCOTT, Vlttlnl*
UELVIN (. VMTT. Nera Ctn«M
ZOEI.OFGncr<.C«lihn«a
SHCtA JkCKSON La. Tin*
MMMEWaTTFB. CiCKinit>
VnUAM 0. OCLAMJ^fT. M<Milll<yuH>
RoeeRT wniEft. FMfUi
UNOA T. SANCHEZ, C<likin«i
SIEVE COHEN. Ttnr>«H«*
HENRY C. 'HANK* JOHNSON. JR.. CMra)a
BETTY SUTTON, OMo
LUS V.OUTcnHEZ, HUM
ERAO Sa HBMN. CaBoni*
TAMMY BA lOWM.Waci>miA
ANTHONY 0. WEINBI, Htm Ysik
AOAMB. S<»FE.C<Afo>n]*
ARTUR DAMS, AJiBvna
OEBBS WASSERMAN SCHULTZ, FtorHl
ONEHUWDftEDTEMTOCONQRESS ‘
(ainflrEBS Df the lanited Staten
Httiuje ofUqinstnatiDEg
COMMITTEE ON THE JUDICIARY
2138 Rayburn House OirtcE Buh-unq
WASHIftOTON, DC 2081 5-^1 6
(202)225-3961
nnp:MnM*.hcuM«o«^udicitrr
September 6, 2007
CHnSCAWtOKlM
KK KRlEA^rlM
PAJWaiE.ISBA.ClW»i<H
STEVE KNG.toM
TOM FEENEY. HnUi
TRENT FRANKS A(bM
lOUE OOHMERT, Twa
Pnscilla Duncan, Esq.
472 South Lawrence, Suite 204
Montgemeiy, AL 36104
Dear Ms. Duncan:
Tliis letter follows up on discussions you have had with my staff regarding Ms. Jill
Simpson’s agreement to be Interviewed on topics related to the ciiminal prosecution of former
Alabama Governor Don Sicgelman.
As ^u have discus^ with my stafC the interview will take place at 12:30 pm on Friday,
Septemto 14. 2M7, and will be conducted in the Judiciary Committee office at 2138 Rayburn
House Mce Building. It will be ttanscribed. and will be taken under oath. Questions will be
asked of Ms. Simpson by only two people - a member of the Committee majority staff and a
raOTirer of the Committee minority staff- although additional membets of the Committee staff
Will likely be present
^''6 an opportunity to review and conect her interview transcript
before it is released, and will receive a copy of the transcript when it is final. In addition, the
^senpt will be kept confidential and will not be disclosed except pursuant to the Chairman’s
decision after consultation with Ranking Member Smith and with you. My staffhaa discussed
&ese terms and conditions with Ranking Member Smith’s staff, and wc understand that
Mr. Smith will write you agreeing to these terms as well.
I hoiM this description is weful to you and Ms. Simpson in advance of next week’s
questions, please do not hesitate to contact my office or Sam Sokol
(202-225-2129) of the Committee staff. And thank you once again for your and Ms. Simpson’s
cooperation in this matter.
165
Sokol, Sam
Jezierski, Crystal
Wednesday, September 12, 2007 2:26 PM
’helzphar@mindspring.com*
Sokol, Sam
Re: September 14, 2007, Interview of Jill Simpson
From:
Sent:
To:
Cc:
Subject;
It was not communicated to us by you or the majority that Ms. Simpson had already agreed
to a total of 3 individuals each that would be present for the majority and the minority.
We will participate then with a total of three persons being present at any one time.
Crystal Roberts Jezierski
202 226 8684 direct
703 B99 0355 Cell
Crystal . JezierskiOmail .house.gov
Original Message
From: Priscilla Duncan <helzphar®mindBpring.coni>
To: Jezierski, Crystal
Sent: Wed Sep 12 13:17:11 2007
Subject: RE: September 14, 2007, Interview of Jill Simpson
The majority already has agreed, and these were the terms under which Miss Simpson agreed
to do the interview.
Original Message
From; Jezierski, Crystal <mailto:Crystal.Jezierskii9mail.hou8e.gov>
To; helzphar(3imindspring.com
Cc ; Sokol, Sam <inail to : 6 ain. 8 okol®mail. h 0 u 9 e.gov>
Sent: 9/12/2007 8 j30:36 AM
Subject: RE: September 14, 2007, Interview of Jill Simpson
Ms. Duncan - I can understand her concerns. As a practical matter, the interview
process really is quite controlled among staff. All those who are in the room ate the
staff that are assigned to work on these issues for the Committee and for the Committee's
members. He, the minority on the Conroittee, would have some concerns about not allowing
appropriate staff for our subcommittee ranking members to be able to participate as
observers because they must be in a position to be able to consult with the member they
work for on the matters we are investigating. I am not suggesting that there not be a
limit, but perhaps a higher number of 4 or 5 individuals.
From: Priscilla Duncan [mailto:helzphar®mind 3 prang.cora]
Sent: Tuesday, September 11, 2007 6:12 PM
To: Jezierski, Crystal
Cc: Sokol, Sam
Subject: Re: September 14, 2007, interview of Jill Simpson
Miss Simpson objects to any more than three persons from either staff being present,
as she agreed initially. She is concerned that the place will be flooded with people
passing notes to the questioner and it becoming a distraction. I am sending this
ob:)ection to the majority as well. Priscilla Duncan.
i
EXHIBIT
I
166
Original Message From: Jezierski, Crystal
<Tnail to : Crystal . JezierskiOmail . house .gov>
To : helzphar®fTiindsprlng . com
Sent: 9/11/2007 3:52:05 PM
Subject: Re: SeptenODer 14, 2007, Interview of Jill Simpson
Ms. E)uncan,
Per our telephone conversation of 2:30 this afternoon, the purpose of this
email is to confirm for you that staff for the Minority Members of the Committee on the
Judiciary of the U.S. House of Representatives will participate in an interview of your
client, Ms. Jill Simpson, on Friday, September 14, 2007, at 12:30 p.m. in Washington, D.C.
at the Committee's offices, 2138 Rayburn House Office Building. This email is also to
confirm that all staff agree to the terms stated in correspondence from Chairman Conyers
to you, transmitted to you on September 6, 2007. (A copy of that letter is attached.)
As stated in the September 6 , 2007, letter Ms. Simpson will be interviewed by
Committee staff and the interview will be transcribed and under oath. We agree that
qfuestions will be asked by two persons, one on behalf of the Majority Members and one on
behalf of the Minority Members. However, as Chairman Conyers' letter states additional
members of the Committee's staff will likely be present. As I informed you on the
telephone we anticipate that Caroline Lynch, Counsel for the Minority Staff of the Crime
Subcommittee, will question Ms. Simpson on behalf of our members. We also anticipate that
Daniel Flores, Chief Counsel for the Minority Staff of the Subcommittee on Commercial and
Administrative Law, and I will be present for the interview. It is possible that
additional staff representing the Committee Members, other than the above named, will also
be present.
We also understand that Ms. Simpson will have an opportunity to review and
correct her Interview transcript before it is released, that she will receive a copy of
the transcript when it is final, and that the transcript will be kept confidential and
will not be disclosed except pursuant to the Chairman's decision after consultation with
Ranking Member Smith and you.
Please do not hesitate to call me if you have any questions.
<<090607 to p duncan re jill simp6on.pdf»
sincerely.
Crystal Jezierski
Crystal Roberts Jezierski
Chief Counsel for Oversight and Investigations
Committee on the Judiciary
Minority Staff
Representative Lamar Smith, Ranking Member
U.S. House of Representatives
B-351 Rayburn House Office Building
Washington, D.C.
(202) 226-868'! direct
z
167
(703) 899-0355 cell
Crystal . Jez ierski®mail .house . gov
168
STATE OF GEORGIA )
)
COUNTY OF DADE )
AFFIDAVIT
Jill Simpson, being duly sworn, deposes and says:
1 . 1 am over the age of eighteen and of sound mind;
2. 1 have personal knowledge of the facts herein;
3. During the 2002 Alabama’s Gubernatorial campaign I assisted the Bob Riley
Campai^ when they requested help on matters in Northeast Alabama;
4. On November 5, 2002, the election for Alabama’s Governor was held and Bob Riley
was declared the winner;
5. Bob Riley won by approximately 3, 1 20 votes;
6. Don Siegelman contested the results of the election and refused to concede;
7. On or about the week after the election, I was asked to find out why Bob Riley’s
campaign rigns were disappearing in Northeast Alabama;
8. I found out a Jackson County attorney was purling the Bob Riley signs up in an area
where a Ku Klux Klan rally was to take place in Jackson County, Alabama on November 1 6,
2002;
9. As proof that this was a trick by this attorney, wdw I believed to be a Democrat, T took
pictures on a disposal camera of this attorney putting »q) the signs;
(T
EXHIBIT
1
a
3
^iMRSON 1
1 0. On Monday after taking the pictures I had a case in Jackson County and had a chance
to encounter the attorney that I had seen putting up the signs- At this encounter he was showing
pictures that he had taken of the signs to other attorneys there in the court house and I asked to
see them. He allowed me to see the pictures and when I asked he gave me a couple of the photos
and told me that these pictures were on a web site. The attorney was trying to suggest the Klan
had a rally and the Klan was supporting Bob Riley, and after getting the pictures I left the
courthouse and I placed a call to Rob Riley, Bob Riley’s son, on my ceil phone and informed
him of the pictures and the information regarding the missing campaign signs and the web site.
After I spoke vnth Rob be told me they had been getting calls about the internet site and were
trying to determine where the pictures had come from;
11. Throughout the day of Monday, November 18 there were multiple calls to me from
Rob Riley and other people about the pictures I bad taken and the trick this attomey who I
beKeve to be a Democrat was trying to puU;
12. 1, Rob Riley, William ‘*6111” Canary and Ten^ Butts were participants in one of the
calls;
13. During the call Rob Riley was upset about (he pictures and internet trick and wanted
to go to the press but was told by Terry Butts that he would confront Siegelman regarding the
signs and get him to withdraw his contest of the election and he believed that Don Siegelman
would concede by the ten o’clock news when confronted with these pictures and the internet so
as to avoid any embarrassment to Don Siegelman. Terry claimed that he would be able to assure
Don that this would all be over if he would concede;
SIMfSON^2
170
1 4. Rob Riley asked about Siegelman being a problem in the future if they did not go to
die press, but he was told by William “Bill* Canary not to worry about Don Siegelnian that “his
girls would take care of him” and at thistime the election contest needed to be put behind them
to let Terry talk to Don and get him to concede;
15. William “Bill" Canary identified “his girls” as Leura Canary, his wife, and Alice
Martin, the U.S. Attorney for the Middle and Northern District's of Alabama;
16. Rob Riley then asked if he was sure these “girls” could take care of Don Sicgelman
and William “Bill” Canary told him not to worry that he had already gotten it worked out with
Karl and Karl had spoken with the Department of Justice and the Department of Justice was
already pursuing Don Siegelman;
17. Arrangements were made with me for me to meet a campaign worker of Bob Riley’s
to give the photos that I had received from the attorney in Jackson County and to give the
disposal camera since I had not developed the pictures I had taken. I gave the photos and the
disposal camera to the campaign vvorker.
18. Late that afternoon of November 18, 2002, 1 was called by Rob Riley and told Terry
Butts had talked with Don Siegelman and that Don Siegelman would be resigning before the ten
o’clock news;
1 9. Don Siegelman gave up his contest of the Alabama Governor’s Election die night of
November 18, 2002.
20. 1 did not realize until this past fall when ! was having a conversation with Joe Espy
that Don had never told his attorney \^1]y he cimceded on November 1 8, 2002.
SIMP^ON'-a
171
2 1. In February 2007, afier I talked to the Ala bam a Bar, I called Richard Scrushy’s
attorney, Art Leach, and told him why I believed Don Siegelman had conceded and Mr. Butts’
role in getting Mr. Siegelman to concede.
22. The reason I did this is because I believe everyone has a sixth amendment right to
have an attorney who does not have a conflict and I believed that Mr. Butts did.
FURTHER AFFIANT SAITH NOT.
/' JiD Simpson
Sworn to and subscribed before me, this the day of ,■ , 2007.
SlMPSbN 4
172
^ MRELE5S
.ye 2
37574
FOR BILUNG INQUIRIES C>!JLL 1(256)899-9000
DANA JILL Sira>SON
(256)899-3600 10007203 B 1
BILLING DATE 12/15/2002
DATE CCOT
FARMERS WIRELESS DETAIL OF ITEMIZED CALLS
TO PLACE AND KUHBER MIH AIR
CROSS
ll-l€
11-19
11-19
11-21
11-21
11-21
11-31
11-31
11-21
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11-25
11-25
11- 3«
12- Q4
12-04
12-05
12- 05
13- 05
12-05
12-05
12- 05
13- 05
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12-11
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BILLED FROM 256-
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CALLING AREA BIRKIH3HAK FDR 2S6-499-3601
11- 17 1:01pm WL AT BIRMINGEAM AL 305 836 5434 1.0
12- 06 6:34pm WL AT ARAB AL 256 317 7903 4.0
12-06 6:Slpn WL AT RAIH9VILLS AL 2S6 638 2908 8.0
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CALLltTB AREA SCOTTSSORO FDR 256-B99-J601
11-lS 10:52Bnl WLAT BIRMINGHAM AL'^'aq5.670 9866
SUBTOTAL FOR 899-3601
1 EXHIBIT
s Lj
i
SIMPSON 490
174
ROBERT R. RILEY. JR.
FOSTER F. MARSHAli
ROBERT
1806
OF
{R. RILEYJR.
O^MOORROAD
ALABAMA 35209
TELEPHONE
(205) 870-9866
FAX {2i)5) 877-9272
Jiin
11,1998
Ms. Jill Simpson, Esq.
Post Office Box 341
Rainsvilie, Alabama 35986
Dear Jill:
1 spoke with a pi
me that her amn^e^ere that lost ei^t
However, it appears that this would be the onl^
1 simply coiild not bring such a lawsuit for thajt
stating whether it was malpractice or not, and
justify bringing that case.
latential medical malpractice case. She explained to
T^ceks of sick leave and was in pain for eight weeks,
damage she would have. As such, I told her tihat
^»pe of damage. I assured her that I was not
bid not blame her for being upset, but I could'not
RRRjr/ded
Njery t^y yours,
i^b^ R. Riley, Jr.
EXHIBIT
5 ^
SIMPSON 558
175
ROBERT R. RILEV, jR.
KEITH JACKSON-
'aha leefli«d ro ptocllM Saorgta
ROBERT R. RILEY, JR.
)806 o;|moor road
BIRMINGHAM. ALABAMA 36209
TELEPHON: : (205) 870-9866
FAX: C 05) 877-9272
Septemi
Jill Simpson., Esq,
Attn: Marie
Post Office Box 341
Rainsville, Alabama 35986
Re:
Dear Marie:
Please have
Sheet and return it to me.
iber8,1999
fign the enclosed Release and Distribution
very truly yours,
fZ.
Robert R. Riley, Jr.
RRRjr/trh
Enclosure
SIMPSON 579
176
ROBERT R. RIL5V. JR.
KEITH JACKSON’
’alu lcen<ed le pioclle* In G^ctgla
ROBERT R. REJEY, JR.
1806 0)
BIRMINGHAM.
TELEPHONE:
FAX:
'XjMOOR ROAD
ALABAMA 35209
(205) 870-9866
i) 877-9272
Septenper 23 , 1999
Jill Simpson, Esq.
Attn: Marie
Post Office Box 341
Rainsville, Alabama 35986
Re:
Dear Marie:
Please find enclosed a check in tfie
Eight and 23/100 Dollars ($7,968.23) for
i mount of Seven Thousand Nine Hundred Sixty
t le referral of]
Thank you for referring her to me.
RRRjr/ trh
Enclosure
SIMPSON 578
177
LAW OFRCES
OF
ROBERT K. RILEY, JR.
1806 OXMOOR ROAD "
BIRMINGHAM. ALABAMA 35209
ROBEITr H RILEY, OR.
KEITH JACKSON- TELEPHONE (205) 870-9866
•one. ie*o»d to piaeAea H Ceo-gua
April 6 , 2000
:ottsboro, Alabama 35768
Please call me when you have an opportunity. The Defendants have now offered
you $23,000.00 to settle youx case. This is up from their last offer of $14,000.00. I believe
they will likely pay $25,000.00 but I do not believe they will pay anymore. I look forward
to hearing from you.
RRRjr/ trh
cc: Jill Simpson, Esq.
5IMP80N 581
178
RILEY & JACKS
1744 Oj moor Ro:iu
Binningh iin» AL 35209
Teh 2i 5-879-5000
Fax: 2 15-879-5901
p.c.
Date: May 2, 2002
To: Ji)l Simpson, Esq.
Fax No.; (256) 6384895
fom; RoheriK. Riiey, Jr.
swh.jcct:
Number of Pages Including Cover pjige:
Comii. ::
CONFIDENTIALri'Y NOTICE
T!>i» tucbiniile cransmission (and/or ihe documents n
(0 iLc setliiarwhkh is legoHy privileged. Thcinfonnalj
above, if '.ou are not thu intended recipient, you are
tnUifig of Cl y action based on tbo.toRlents of this faxAd
irfln5o?i55ir.r. in error, iin.nsdiate’y notify us by
impanyini} it) nay contain confidential iitfonrulion bo .
loo is Inicnded only (br tiie use nf (he individual or entity
tereby notified that any disfilo-sure, copying, disiributioii or (lie
iiifijimation is strictly proUibited. If ywi) have r£cci\ cd this
Itdephone to arrailfic fnrths return oftlie dociJnvmi.s,
SIMPSON 532
L8]
made bcfw'^ the'^P
tf 'i. thitdc ^OTi ■A'ofeiS';^.
;. l^m the Btatemeiit that Jjjjfplll
■on Apf3r‘2, 2001 . ..I havp^i^liAt^|tetf wderiioet^ the
Mnlofcstcil'-.ln-iaing, ; • ! .
A^SOi, I r^2 the deposItidniAa^ou^ffic^S^nttarrlG yc^e^dayi
i: \v^s-they(il.riyv$ deeisisfl not X6'
.<ls»g 4i^b.nikgt>c t^t6~tt&vo the cBosig JRveT|iiBkhd:i^e.f act th^fig^ jl^th^Fty
'^as the lbwes^^^ddc0'i»etlGupl^£^jih£^||||||||M
■^I^^RtR^prfeviously done tWs typeofwDrh; hp di^ hot thTi^^TO^^.-'t^ntb^shi
awarded the ctmtTact. (Pa^ed-?). | ’'' ^ , •;
[] meeting vidOo to you by foddt-^. express.
go oii to say th'at'they iuirial^ly rec(>mmended|P|^o]^'the worlcbid-^n
decided instead to use DMC. ! ■
. Most of the olhbr depositions addressthc issucjaslo hoWfhoy deeide4#-ttsi
'f[‘."- biitnon'c of die depositions set forth ourcaseaswclJniwhor.'ttbMayoi’^says’ihWiSt-ateiTieut^-tiie-*-
't-'A'^l'l^'g-fty-Cpund.tinmyc^ j C
§ Alfeo, do we have any evidence ofoth^ contracts that would ^
citlos where similar amounts have beeh paid. Itismylrecollccltoii tlmt^Hhaflftffi^idc- . • to
once berotc thsi odief companies were paid similar afnoums for similar work
T am also sending the 1
182
Ma+2,2lj02
e additional thoughls that I, liave:
I think youi letter is very goad. Hcred
Attach a copy of the transc ribe ^ conversati on belwcen)I^HiPBnd4VHimilP
4ll|^n which ^mUllteDs] HIlMi that he i$ aware that flMdoes not have
the lowest bid contract and Rir hcrmorc approves the right forthc City to enter into
that contract. Also, IWM ^ates in co nversation tliat he has 'Van it by the
IC,” and they didn’t have a pi oblem with it MHHIi^pociilcaUy states in the
conversation “we’re not goini to come after you for not taking the lower bid." I
think this wquld be a ^eat'ex) ibit to the letter.
Add a copy of the trtinscript fr^4VBHpriHH||ll>.Vido6tap8‘:^ateTnent tliat he
madebcforetheQl^Councilbn April 2, 2001. Also, IsentbyF'eoExacopyofthc -
videoupe to you yesterday. «
On the lost paragraph under qi ostion #1.you may want to add ihut the subcontractor
claim.< that have been filed c :cee<l two niiliion dollars. Also, J would delete the
reference to tltc recent deposit ons taken in litigation since there ■ • that helps us
and some of the testimony wo ild hurt u$. For instance, "i lying in hia
deposition that he did not bel eve flMkhould be paid any &ddix-. money.
I think it would also be goo I to highlight again that l^^has been a respected
business lor 25 years and ii is only b^ausc of this recent cleiirul by FfiMA that they
have had to enter into bankru jtcy.
't • 1
In the lastparagraph under qu «tion#4, you may want tocorisider adding the fact that '
therj wfiro estimates (hat Ihei e was as many as one million .suunps.
i
Undet^ues^n #5, you may j^ant to highlight thai the City originally wanted to use
who was the !c west bidder, but FBMA encouraged tlte City to not use. .
based on his in ;xperigx^n these ly{7es of d{s<!a.«iters. Also, you may
want to highlight again ftie fi ct (hntm^as the only contractor willing to give a >
substantial arnoiini of w'ork I j minority contractors. -
'^mm^states thatFEMA mfonnedhim that they would not pay the full amt nt
due to the fact that he did not use the lowest bid. If this is the o.ise, then FEMA
shoiJ^^^arly lose on this position since they agreed in a tape recorded conversatiorr .
that mm did not t^c the lowest bid. Ift as I understand i, their priiMi^
argument now is tha^H^pould not be paid because the binning Jiiid grinding wap
not done which would have decreased Ae amount of material that would be hauled f
outside thr city, then I think you should reference in your Jotter the c’:
183
:RILEHY 3. JPCKSON, P.C. FPi^ NO. May. 02 2002 Ci3:i6®M P3
. Dpeal ptidrcssfis this issue o i page 21 that deals with this issue.
S) You may also wart to consider a ding the fact die City did pay .m additiaaai Sv i
cm approxiniately26,000oBbieya ds |\H«icrmdcrimmgthatthoC«yundoistoodt)i.
was the iimounl they agreed to ps y.
01 Hlaakruetoremindyouthaig :tling|Bfc»ito agree to receive S2,00/cubic
yard was a great deal for FEh A since other landfills were charging S8.00 -
SlO.OO/oubic yard.
SIMPSON 535
184
. FJ^ rfiirav P.C. FfK hO. ;;05B?SS901 Hay 23 2000 12:llPH' PI ' ■ .i\
RobRlA'
9^*4"
dmcmikemitcAilQaat.com
rhave been talking with Robbie frorn Hutchinson's ofHce. Me las ofTered to tiy to get the Senator to send this letter. Below ore'' ■ ^ • •-•
sofn* dianges tlifll he has made to a draft letter I sent to him, rcbelicvcsthatlhoSonatorwjllnpprDvelhelsttcrandacnditpiU ' '.V
today or tomorrow, r asked him to copy it to Shelby, Sessions indAderhoU. Stewart, if the Aldbetria gang gots a copy of this ,
letter, do yon think we can gei another letter from them to AHI aujdt responding to Hwtehirwion'a letter"? I sent Robbie copies of • ^ v >
the documents referenced bolow so he fbeja comfortable sendi ig the totter. ,. ?* i
Mr. Joe Allbaugli ^
■Dlrcctof
Federal STncrgeccy Management Agency
500 C Street, SouAvrest
Waahiiieton, D.C. 20472
Dear Mr. AUbaugh;
being ma^ by the city. Officials fromtliecity'as well as V
submitted an appeo^h&ve die conirsetthey enteKd into with ’>
it agreed to pay mPIbr work done in 2001 . It U my hope chat
imergency Management Agoncy (FEMA) in grant the appeal .
h-cocntlymetwitliFEMAreproaonlfttiveahemin WaaWnBton. •.
DC, I wanted to make you persooally awnw of the some issuck that were brought fortli during this mooting,
At lltts time, more than $ 2 . 000 , 000.0 0 in cla
aub^ntr^ctors who were not paid byfllih
d^Bhadroontracted topay thi.s company, i
8 hav^c^madc against
»useBB0^>d not rcecive th^SnounnnatTnS||
IPhas consequently been forced mto bankrupteyr
A FEMA document exists that.<ihows that FE k4A monitored the project, wue aware of the contmot price at the ■
beginning of the project, and understood dw ct^e of work that was being porformed. This is dwiuxienlad ip a •
FEMA Field Summary Report.
After FEMA arbitrarily reduced the amoom t ft he contract between the WWBMBBBMMH rom ^
$19.18 per cubic yard to SIO.OO per cubic yru i.fBH|[|HHHi|^^^^^^^HFapok^yte^hone ’
with Mr. Joe Bray, the FEMA representative vhoM^SrgelyresponsiDl^o^^cing^Bmount BljiB !, V’
reedve^w $19.18 to $10.00 per cubic yai I. In that conversation, which was recoi’dcd, Mr. Bray admittetf ' . j
linvebeen paid $19.18 per ubicyard, which is die amount of the cntitract with theB^ii^B -
Bused oil the teds that(a) tncJHHHmHBs be ngsnedforover $2 million by Bubcontraotora (who are local ,
residents) who have not been paid for work rendered, (B) FEW A was aware of the amount that was to he paid and the scope of / V
the work that was being done pursuant to tlio contract (ii is no> r my understanding that FEMA is stating that die aeopc of the ^
oonUnct is in question, somcihing I find difficult to believe iin w FEMA moni tored jh e work being done), (c) a FB.MA ' ■ '
iepreBenmtive stated after the amount was reduced from $19.1 1 (o $.10.00 thafl||fthould have acUially beer, paid the fiill
$19-18, I do not understand why FEMA is continuing to deny payment on tliiTO^. The city was acting in good faitli and wns,^
not acting maliciously. U is for these reasons, 1 ask Chat FEM; look favorably on
With kind regards. [
SIMPSON 55.0.i.:
185
Riley & Jackson, p.c.
attorneys at law
ROBERT R. RILEY, JR.
•KEITH JACKSON
■also uerx»«tt io PiwfTiEE m o*
FRANCOIS M. BUUDEAU
UD. FCLM
vS^ember 16, 2002
VIA FACSIMILE - 2S6-638-489S
Jill Simpaon, Esq.
P. 0. Box 341
Rainsville, Alabama 35986
RE:]
Deal Jill:
I have reconsidered the wrongful death case thatflj^wants to bring on behalf of the estate
of his grandchild. We are not in a po sition t o prosecute this case due to the fact that I do not believe
it would be a strong case since eitherJjjUOTWs wife would be the administrator. I know we have
discussed this in the past and that yoi^SJUI^clicvc that it is a case that could be won even with
him or his wife serving as administrator. Im^ very well be wrong on this matter, but I do not want
to proceed under that airangement.
Since I do not have an open file in my office, I am uncertain as to when the statue of
limitation will run, but I know our discnsrions ttiat it is soon. Also, I know that you had
indicated that you had other attorneys that you felt wouU file the case and 1 am hfppy th?i th^ is
someone that will be pursuing.ftus case. I do hope diat jfOu are able to recover oh the case.
Finally, please know how much we qjpredate you sending us cases and I am sorry that we
are not going to be able to assist on this particular maUcr.
Very truly yours, .
RE.EY& JACKSON
Robert Riley, Jri
RRRdr/msd
SIMPSON 526
1744 OXMOOR ROAD mRMWfiH AM. ALABAMA 35209' (205) 879-5000 FAX [205) 87^ 5901
186
Riley & Jackson, p.c.
ATTORNEYS AT LAW
ROBERT R. RIIEY. JR.
'KEITH JACKSON
FRANCOIS M. BLAODEAU
MD. FCm
Novenkber25,2002
VTA CERTIFIED MAIL
Certmed Mail No. T(lO(l-QS2Q-Q(l2O-g721-0gy7
Sylvania, AL 35988
Dear Ann and Scott:
I hope this letter finds both of you
Simpson’s office recently. I also understand
he received that may have been caused by the I
1 'ell. It was a pleasure meetin g at JUl
t lat Cat has spoken witl^imlPegarding the injxvies
collision.
We have undertaken extensive researt
counsel Dr. Blaudeau, regarding the medical
■■ft hiatal hernia or diverticulitis. Unforti nat
deSrly indicates that we will never be able to m
A t trial, wc would bear the burden ofproof on
it is just as likely that the injuries were caused
would have to prove by a preponderance of]
collision. We do not believe we will be able
during our investigation.
r4h and discussion with physicians, including our of
possibility of the collision causin^HHj^lcer or
itely, the information we have ben^hle to gather
irove that these injuries are related to the collision,
jhis matter. It would not be sufficient to suggest that
by the collision as it is they were not. Rather, we
|the evidence that the injuries were caxised by the
do so based upon the information we have learned
Without these injuries at issue, it does
this claim for you because it will ultimately cos|
to settle the claim without our involvement,
claim by being involved, wc would certainly
make economic decisions regarding which
however, and it does not appear that it makes
claim.
any contract with us. Please understand fha :
different way. If you are still interested in Iiavi ij
speak with Jill as soon as possible. You have2
1744 OXMOOR ROAD BIRMINGHAM, ALABl
pot make sense for either of you to hire us to pursue
more tohave us involved than it would cost for you
Ijf Rob or I believed that we could add value to your
•ursuc this matter on your behalf. We also have to
ims We can handle and the value of those claims,
;ood economic sense for us to be involved in your
As a result of the foregoing, we are closjng our file on this matter and are releasing you from
different attorneys sometimes view matters in a
ig an attorney help you with this matter, you should
years from the date of the accident within which
ftMA 35209 (205) 879-5000 FAX (205) 879
^plJjlPSON 561
187
November 25, 2002
Page Two
to bring a lawsuit If you do not bring a I iwsuit within that time, you will be barred from
doing so forever. Therefore, you should not hesitate in speaking with Jill if that is your plan.
Thank you for ^ving us the opportuni
best of luck. With best regards.
^ to evaluate &ese claims for you.
We wish you the
Very truly yours,
RILEY & JACKSON, P.C.
KJ/cat
cc: Jill Simpson, Esq.
V f
SIMPSON 562
188
Riley & Jackson, p.c.
attorneys at law
ROBERT R. RILEY, JR.
TCBITH JACKSON
■auo uccmsco to micTwc w
July 18. 2003
FRANCOIS M. BLAUDEAU
MD, FCLM
Ms. Jill Simpson, Esq.
Post Office Box 341
Rainsville, Alabama 35986
Dear Jill:
I am enclosing your referral fee for ^ copy of the Distribution Sheet
I felt I had no choice but to reduce the attorneys* fees given the condition and the
circumstances of Oils matter. Thank you for sending die best regards.
Very truly yours,
RILEY & JACKSON, P.C
Robert R. Riley, Jr. ^
RRRjr/cat
Enclosures
1744 OXMOOR ROAD BIRMINGHAM. ALABAMA 35209 (205) 979-5000 FAX (205) 879S1WPSON 582
189
Riley & Jackson, p.c.
ATTORNEYS AT tAW
ROBERT R. RILEY, JR.
■XEITH JACKSON
FRANCOIS M. BLAUDBAU
MD, FCIM
OctoMr 23, 2003
Jill Simpson, Esq.
P.O. Box 341
Rainsville, AL 35986
Dear Jill:
fet al. V. Ciw
I hope you are do ing well. I am enclosipi
fe e for a bove-referem
forw^(
processoffiJin^a^SsEteof^H
we will be able to finalize her settlement as wl
of Scottsboro, et al.
ig a check in ih e amount of $ 1 ,25 0 .00 for the referral
i(jed matter. I am still waiting for the Releases from
•<1 your fee upon receipt. Steve Kennamer is in the
and once he receives his Letters of Adnumstration,
lU.
RRRjr/cat
Enclosure
Veiy truly yours,
RILEY & JACKSON, P.C.
Robert R, Riley, Jr.
1744 OXMOOR ROAD BIRMINGHAM, ALAB IMA 35209 (205) 879-5000 FAX (205) 879-aiMPSON 559
190
Riley & Jackson, p.c.
attoereys at law
ROBERT R. RILEY. JR.
•KEITH JACKSOK
■AUO tlCCHSSB 19 ^K<ciiec IH CA
May
7,2004
FRANCOIS M. BLAVCEAV
MD. FCLM
Jill Simpson, Esq.
P. O. Box 341
Rainsville, Alabama 35986
Re-,
Dear Jill:
I am enclosing your referral fee for |
to us. With best regards,
P Thank you for sending |
Very truly yours,
RI LE^ JACKSON, P.C.
Enclosure
1744 OXMOOR ROAD BIRMINGHAM. ALABAMA 35209 (205) 879-5000 FAX (205) BTS-sSAMPSON 556
191
Exhibit 6
Exhibit 6 is a DVD identified during the interview of Jill Simpson. See pages 38-
40 of interview transcript.
For more information, please contact the press office of the House Committee on
the Judiciary at 202-225-395 1 .
192
DANA JILL SIMPSON
ATTORNEY AT LAW
P.O.BOX 341
RAINSVILLE AL 35986
256-638-4891 telq)hone
256-638-4895 facsimile
February 15,2007
Art Leach, Esquire
678-624-9852
Dear Mr. Leach,
I am sending you some corporate records. It appears your judge in your Mr. Scrushy case
has extra curricuJar activities that he has failed to disclose on his judicial disclosure form.
You can get a copy of his disclosure at judicial wMch. One example is his professional
aviation training service corporation located in Alabama. 1 have attached a copy of the
secretary of state records that shows he dissolved this corporation on or about July 3,
2006. I find this interesting since this was shortly after his other corporation Doss
Aviation Inc., received a contract from the United States Air Force in the amount of one
hundred seventy eight million dollars awarded to him in May 2006 for providing in flight
training school services for the United States Air Force. Additionally if this comes as
some what of a surprise to you, Mr. Fuller’s corporation Doss Aviation Inc, has over
thirty million dollars a year in contracts already in place for providing fuel maintenance
to the Air Force, Navy and Department of Defense. Further Mr. Fuller has a coiporation
called Doss of America which has a sub^diaiy ninning out of it and sometimes running
out of Doss Aviation Inc. depending on wbatevCT seems appropriate at the time that is
making military clothing and other government clothing for the United States
Govenment which is called Aureus International and this subsidiary is not disclosed on
his judicial disclosure form as a separate entity.
Furthermore, you can check with the Colorado Secretary of State and discover that Mr.
Fuller owns 43.75% of the stock in a privately owned corporation named Doss Aviation
Inc., and is listed as the CEO and Chairman of the Board of Directors of said corporation.
It is interesting to ijote th^ his judicial disclosure forms do not mention that he is the
CEO and Chairmai^ of theBoaid of Directors of Doss Aviation Inc. Further he is the
largest slockholderjand the second largest stockholder is a fonner law partner. It appears
that we have a fedwal judge who is also a large federal defense contractor. Art, after
researching what I have told you and looking at the documents that 1 have sent, you
might want to look at 5-U.S.C. App. 501 — 505. You also might want to look at 1 8
U.S.C. 201-216. Additionally you may want to look at the United States Judicial
i
SIMPSON 775
193
Conferences Code of Conduct as regards judges' rights to set as directors and officers of
corporations.
I hope that these documents assist you in getting a new trial for Mr. Scrushy and the old
trial completely thrown out.
After researching Mr. Fuller quite extensively it is somewhat surprising that he never told
anyone drat he is a federal contractor. I believe dns to be contrary to the laws that govern
a federal judge. I am sure you never imaged that Mr. Fuller was involved in such
endeavors. The most surprising thing of all is that Mr. Fuller appears to have been
receiving a targe portion of his information at his office at One Church Street,
Montgomery, Alabama. I am sure you realize dial is the federal court house as that is the
address be gave to the Secretary of State in his corporate documents.
I have additional records available but I was not sure if your fax machine held enough
paper to send everything.
Good luck with your endeavors.
Sincerely,
Simpsoa
DJS/m,
SIMPSON 776
194
Mr. Forbes. Now, in an attempt to keep this so-called investiga-
tion afloat, the majority has turned its attention to other out-
rageous claims. Today, our Committee has turned into a political
circus when we should be addressing issues of serious public con-
cern. The American people hopefully will see this event for what
it is, just one more in a string of dead-end political investigations,
but at least the majority will succeed in one major thing. They will
break yet another record. They will move their approval rating
even lower than the 11 percent they currently have earned.
And I yield back the balance of my time.
Mr. Scott. Thank you.
And I would now like to recognize the Chairwoman of the Sub-
committee on Commercial and Administrative Law, the Honorable
Linda Sanchez who represents California’s 39th Congressional Dis-
trict.
Ms. Sanchez. Thank you, Mr. Chairman.
During the course of the U.S. attorney investigation, we have at-
tempted to learn why nine talented U.S. attorneys were fired in the
middle of Bush’s second term. While the answer to that question
remains elusive, today, we will try to answer a different question,
but a no less troubling question: Did the U.S. attorneys who were
not fired, the so-called loyal Bushies, base Federal prosecutions on
improper partisan purposes rather than on facts and law?
This hearing, I would remind my colleagues, is about the single
most important issue in the criminal justice system: whether the
power of the prosecutor, the power to take away someone’s free-
dom, has been abused. The public must learn the full extent to
which the Justice Department has been transformed into a political
arm of the Bush administration.
During former Attorney General Alberto Gonzales’s tenure, non-
political Justice Department lawyers, such as assistant U.S. attor-
neys and immigration judges, were hired for jobs based on party
affiliation and campaign contributions rather than because of their
qualifications. Top members of Mr. Gonzales’s staff attended pre-
election White House political briefings led by Karl Rove and his
aides. Mr. Gonzales authorized almost 900 people in the White
House to have communications about ongoing civil and criminal in-
vestigations with at least 42 department officials.
Some Federal indictments were timed so as to have a maximum
impact on upcoming elections, and evidence suggests that nine U.S.
attorneys were fired in part because they refused to make prosecu-
torial decisions for politically motivated reasons. This hearing will
explore whether political considerations improperly influenced
prosecutorial judgment in several cases across the county.
In July, Chairman Conyers, Mr. Davis, Ms. Baldwin and I re-
quested documents from the Justice Department on three alleged
selective prosecutions that we believe require additional investiga-
tion. Former Alabama Governor Don Siegelman, Wisconsin State
official Georgia Thompson, and Cyril Wecht, a prominent former
Democratic coroner in Pittsburgh. Three months have passed since
our original request, and we still do not have an adequate response
from the department.
While our document requests focus on three cases of alleged se-
lective prosecution, several other cases have come to my attention
195
since we started the U.S. attorney investigation. For example, the
prosecutions of former Los Angeles City Councilman Martin Lud-
low, Georgia State Senator Charles Walker, Pennsylvania State
Senator Vince Fumo, Michigan Attorney General candidate Geof-
frey N. Fieger, Puerto Rico Governor Anibal Acevedo Vila, and
Democratic contributor Peter Palivos may warrant additional scru-
tiny and Committee action.
At this time, I would ask unanimous consent to enter letters re-
garding the cases of Mr. Fieger, Mr. Palivos, Mr. Walker and Mr.
Acevedo Vila into the record.
Mr. Scott. Without objection, so ordered.
[The information referred to follows:]
196
( <)M\i<>N\VKAi/iii oi' km{ (>
1 ‘ I ■ !'( > RK’f) AI. .AFFAJIlS A I >\r [ N I S 1 ' R A I’l < ) N
( ‘ck^Ik t 2()()';
I he Mmuinihic loiiii ( .t>nvei>
( -hairnian
1 Idusc J iuliciarv r<.)nmimee
2 I2f) Ka\ burn Buildiut?
VX';Rhini>i(jn. I )( ' 2{),S I
l)car(:h airman ( a )nvers:
As ilic i\']it\.'Scni aii\'e t ) I i he C m A'rrnf >f < i) the ( .drinm mu'eali ii 1 1 1 Pucrio i^.K:o in
il’.e I'liucd SlaU'S, [ \vnu- to rL■^|)^ctiulh■ iVLjue<r a ioniial invcstiiaaii' >ii liy i1il'
louse J udiciary ( .omniinee on the work <>1 rhe IhS. Aitonuo’s nrhee in Puerto
Rteo. under the dirceri.Mi ot'Aeting L'.S. \iionK-\' Rosa lanijia Rodrigues. Ms.
Roe!rigiK,.o was appoiniei! to this iiosiuon hv Alberto CJonzules on |une 8, 2006,
and nominated by i6.'es]i..ieni Bush to become the LeS. Attoi'ney t(>r l'6.ie.r!'o Rier..)
in January 16. 2007,
I he sirntla.i'iMes l.iciween the seriou:. t|uesnons surrourHiing the federal
prtJseCLirion ot i )on Siej'etman, the nenioeratic lormer (lovernoi of Akibaina,
and the ledera! grand jurv investigation of .-\nibal Veevedo- Vila, the
Oem<„icriuie (in\'evnor ot Fiieno Rico. art.‘ iruly uncanny. I'liis week, ll.Mtz
magazine publisheul a chilling' re]''or! b\ Adam /agonn <j 1 ns in\ estuyation Inio
the proseciiOfjn o! lormer (. io\-enior Siegelman utlcil I i.a.ic of Xeki'/hv //oVao
suluideLl I// rlkihaniii a Di'WfnTiitjt for/j/a' Ctormior got's /o fnt.wn. Itip 'jo
.1 n.Mli //jri\ikj>c7//o// ijsks ihe (ph-stious /he {’..S. Wiiii'l." In
Ouerio Kico, tliose sci'iiius ipiestions leinam unanswered and. in order to
presciAe the [nint'r oi the ilemoerauc pojcess and the imiiarriaHo' of die jusiiee
^ysu■In, ihey must lie raisetl and answered tliroiigh a d'K'fongh ins es’igaiion,
i he House Itidiciary Hommntee is selieduled to hfild a lieartiU’ on HuirsLlav
Octobi-i- II oil (lie irreguiariiies in die jM-o-ecunon o.f former (MA'ernor
Ssegeimaii. In Alabama, in rlie case ot iornier (jo\ern(>r Suynelman, du- lat.'ls
lhai ha\ e come out make ii apparenr that the [bisli Adnijmstraiion engaged in a
rase ot .st'ieitu'e prosecution, where politics seems to have truin[^eLl jusftee. In
Puerto Rico, the taci> (hat have come out so far about die iiucsmtauon
OC’ ■:;r VCn r r, I H STRc-tf, N W , SUiTe 300, VVAAHiNGTo.U. D C "=>0
TOLt^.PHlyNF r’Oi’.' 7 ^7 e- 07lC i207> 7'‘0 O V l? I
197
Two
Hoiiorahh’ john (Muyers
Oo/oher9.'2(Hr
surroundin'^ (lovcrnor AccvodoA ila clcarK' point to a similar case wlicrc-
iu>tiCL' has lx:cn sacrifu ral ai the altar of politics. 'I liis wariants a hcariiu'; and a
ihorougli invcsiipatii m hv voui' (ajiTiiniitcc.
In PiiLTto Rr-o, Acuno LhS. .‘\ri<jnK‘v Rosa Rmilia Rodn'giRO, wiio lias [k-cu
camduennR she IcnRthv invesri^ation sum lunding Ciovcrnor XcL-vcdo-NAla, has
recused hcrsclt and her oilier Irom investigating die serious accusations ol
“]>ay for play’ invoking her “piditica! menlorA Republican Resuienl
( .nninnssioner in ( Congress Lais I Vnaurue
Since .Mr. bonuiio fiael suiiiiorita! Iier nomination atitl continues lo siip|)or( her
ctjnti.rinarion as k.S, \tiornev. .Ms. K<jd!igue'/ deeninl dial she criuld not. lie
impartial and recused hersell from this invesiigaiujn of Mr, h’onuno, dnis
^eiuling die inarrer to W’asliington.
1 liis begs die ypiesnon: 1( Ms, Hodn'giKv aekiuAvletiges (avorinsiii towards .Mr.
bortuiR} and stales dial .she anel her olfiee cannot investigate him due to iier
lack of impartiality, liow can she conrinue tt; invesiiiiare .Mr. boriiifio's chief
political rival, (..iovernor .Vcevtalo \il;ir.
.^lr. I'ortuno ■ Puerto Ricos hrsi e\'ef Rejiublican Member of (.longress - has
tiled to be bis party’s candidate lo run tor (ioxcriK'r ar'.ainsi CioverntJi
-•\ce\a,'d(.o\ ila in the tshuul’s general elections in Noxa-niber diH.iS. .Mr, hortura.,)
was dratieti to run lor (iongress bv m.aie oilier than Karl Ro\e. In f;icr, .Mr,
b’ortuiio's former eampaivn manager, .Ms. ,\nnie Mayol, worktai at the White
i louse for Karl R( >\'e.
(ji\R'n die ta\‘orirism acknowledged b\' .Ms. Rodrigue/ and Iier recusal in the
tnw'siigalion til Mr. [‘ortuiio, il Mr, i'ortufu> were lo become (jo\'ernor ol
Puerto Kruj and .M.s, Rodrigue/ was the LkS. ,\rrornev, will she and ih(‘ offu'e
oi the b.S, .\uornev for Puerto Hico then leave io be recused from all
invi'siigal il MIS SL:rronnding Mr. l-ortuno and hi^ atlminisnation’' It' su, the
nnpiica Ilf )ns aiv rliseoneeriine.
198
I lonordhii’ \iihi} ( '.iin\-’rs
20(r
II is iio! jusE rl’ic pfdiiic.il leanings of Ms. Rodrigue^^ ilias are a concern. The
iii\'estigaiit:in liy .Ms. Kodrigiic^'s offiec surrounding Cjovei'nor .\ce\'edo-\’ila
has l)i‘cn jilugned h\' c.onslani leaks ot enihai tassing, and noliiicallv d:unaguig\
\‘i‘i hilse or inislcading, iritonnanon. hurlhennore. [lu-i'e ha\e been re]H-aivd
v'lolaEnins ol liu; teLlcra) laws inandaiing, conjidemialiiv of grand jury
jaroceedings. In taci, since IRS agenrs hrive worketl W'iili teihaal agenis in [his
uwesiigatioig rhe I ns]')ecr(;r CiCneral ot ihc Infs. 1 reasnr\ l )epariineni lias jiisi
sent a leiter intorniing that liis olhcc will invcsrigare ilie alleg.ed ineg^nlarities l>v
ihe Il\S in die tedeia! investigation suri'oundiiu' C ioeeni< ir \c('\ edo- Ahla,
hinaih'. as raised In fhc ( .S. Aitorncv in .Mahani.i, Ms. ITidrigue/'s defense
r.gainsi charges ot bias is ihai the inva-stigaitioii surroLiiiding C iowa'nor
.\cevedo-\ lift originaied nor widi her but wiih Ina- predecessor a,s IJ.S.
\tioi:nc\, l^L’rt (iarcia. ITii. if anything, this defense highiig.his rlie irregidaf
manner tn whitli the IJ.S. .Vivorney's (jtliee under Ms. Koiingnex has haiidlet!
tins invesngaiion. hirst, wliile Ben Chircia was the I'.S. .\norney, die public did
ni)E know about tlie in\eslig:iiJori. beeause it was properly kept conlTlennal.
1 lie leaks litgan the week atter Ats. Rodngne/ assuiiKxi the position of .Acting
I..S. \rtoTTiev. Seccavd, we have learned that the in\estigalioii hi' Mr. (iarcia
was rnerelv an t.)ti:siu.joi id ati )n\ estigalion by a grand jnrv in Tdi.i.!adelphia inio
bindraising pniericxis l'>y certain residenrs ot Bennsvlvania. in relation to several
political eaiu]iaigns, inehuhiyg that ol then Resuleni ( ionimissioner .\iu!);i]
\ce\-ed<.j- \ ilfi, ,\s is the norm wiili these campaiini tinance cases, die
im^esiigarion eeniers <in ilie conrnbutt.irs. not tlie candidates who aiu often Uk
victims of die unlawful practices {)t some conirihuiors, Interesiitudt , ihe gg'and
jury in Philadelphia is no longer pursuing these allegations, vet in Puerto Rico,
undet Ms. Rodn'g.ue/, ihe investigntion has e.Kpanded into a fishing exjx'dition
ol am.thiug Comiei'ied to tire (. io\'ernf)ic from Ins Cidlegc transcri]ii lo his
medical records.
At diis pi>int, lire leaks fell us they are investigating the (io\-ernor, I io/tars of
seemingjt iue!e\'an[ witnesses connected to the Ciovernor har'c heiai paraticd,
and announced r<.i die press, before die grand jun, '.'ci no allee.anon of a real
C!im<‘ lias vei to surtacu among the numerous leaks. As one former AsMstani
I .A, \i!orne\. Mi-. Mugiei I’ercira, stared in a letter lo rhe ( ihairman of die
199
I li'inumh/v jo/'i! (
' y)():'
Si'iKiU’ |ikli('i:ii\ (jiinmiiTcc. he bclicxcs iliii! die reason ior \I>, RotlnV.ue/'s
iries-'uhir lu-iiavior in die iin'esn;^'a!i(in ma\ include ''an tAiincht desire lo use
ihe tedeia! )>o\ernii!enrs power in fjrder ro iiuertere sxilli loe.il poliiieal
{irocesses.”
chairman (uinyers. roninutiec’s invesiymirion of die i'.S. Aiinrnee’s
( )t'l:ice in idierio Rieo is neeessarv. Put'rto Kicn vlescrves a serious iin'esiiuaiiou
ami o\'ersie,lir inro this <dtiLX\ die process diroupji \\hich Ms. Roi.lrie,ue/ svas
seleciL'd, i]i(‘ wav in which siie has earned out her tluiies as an \cnni', I '.S.
\[torne\, am! imo vehc-dicr her political and partisan ties has'c indeed diciated
her actions.
Ms. Kodn'puex's condrniaiioji Iw die IvS. Scnaie is apparcnii-r on ]u:.)ld. Ms.
Rodnhiic/’s iiitenni appoiiKinem expires on 1 ndav (.)cioher 12, under the rules
of die "Presen'ine, l.nKei.1 Siaics \Tiornev Independeiu.e Act oj 2(i(P."
! lo\ve\'{.‘r, ilie law does noi atteei her appoiniineni as 1. .S. Attornev I'or Puerto
Rico and, under die new law, she can sdll he appointed on an inTerim basis b\
ihe judiies ol die U.S, Disiricr Court for die I )isinei oj Puerto Kico,
\s the IlMl: inapa/ine rep*»n ct)ncliides lu the case <d loriner (unernor
Siepclinan, there are heigfjlened suspicions rhai tite prosicuiion in that case
“was a case ot selective justice ami that in the Htish \dininisi raiion, ent'oreine
(he law lias been a partisan pursuit.'' Tins epidemic of seleciic'e jiusaici; vlid not.
rmly touch .Mabama, Ihtertr. Kieo seems to ha\-e been affected as well. .\n
invc,s(iy.auoii Is (Ims warranred.
.SinceivK ,
200
Ms. Sanchez. Anecdotal concerns regarding alleged politically
based select prosecutions have been reinforced by an academic
study by Professor Donald Shields, a witness at today’s hearings,
and John Cragan. The study found Federal prosecutors during the
Bush administration have indicted Democratic officeholders far
more frequently than their Republican counterparts. I look forward
to hearing Professor Shields’ testimony today and to gaining a bet-
ter understanding as to why Democrats are disproportionately tar-
geted for Federal prosecution.
I was encouraged that when Attorney General Nominee Michael
Mukasey was asked about the role of politics in law enforcement
decisions, he responded, “Partisan politics plays no part in either
the bringing of charges or the timing of charges.” However, as we
learn from the divergence of Mr. Gonzales’s initial public statement
from his actions at the department, I will reserve judgment on Mr.
Mukasey until we are certain that his actions reflect the interests
of the American people rather than simply the President.
I hope that, if confirmed, Mr. Mukasey will act quickly to remove
the cloud of politicization over the Justice Department and help
steer clear the department back to its core mission: to guarantee
fair and impartial administration of justice for all Americans. En-
suring that U.S. attorneys base prosecutions on legitimate crimes
instead of political considerations would be a good start. The Amer-
ican people need to be assured that political calculations do not de-
termine whether an individual is arrested or prosecuted.
And with what, I yield back the balance of my time.
Mr. Scott. Thank you, Ms. Sanchez.
And I would like to now recognize the Ranking Member of the
Subcommittee on Commercial and Administrative Law, the Honor-
able Christopher Cannon, who represents Utah’s Third Congres-
sional District.
Mr. Cannon. Thank you, Mr. Chair.
I would like to begin by asking unanimous consent to submit for
the record correspondence between Commercial and Administrative
Law and the Justice Department. There are three separate items
here, and I do not think we need to identify them separately.
Mr. Scott. Without objection, so ordered.
[The information referred to follows:]
201
ALAN M. DERSHOWITZ
1575 MASSACHUSETTS AVENUE
CAMBRIDGE • MASSACHUSETTS 02138
October 22, 2007
John Conyers, Jr.
United States Senate
2426 Rayburn Building
Washington, DC 20510
Dear Chairman Conyers and esteemed members of the Committee,
I write to you as an attorney who represents attorney Geoffrey Fieger who has been targeted
by the Justice Department based on his financial support to the John Edwards 2004 presidential
campaign. The manner in which the Justice Department has conducted its investigation of my client
is alarming and unprecedented. In November 2005, the Justice Department, with the express
approval of Alberto Gon 2 ales, amassed a small militia of nearly 100 federal agents to raid the
Michigan law office of Fieger, Fieger, Kenney, and Johnson. At the same time, federal agents
simultaneously appeared at the homes of nearly all of the Fieger firm’s employees. The ostensible
reason for this massive display of force was to find out why firm employees, their children, and other
family members, donated money to the John Edwards campaign. With this, the Justice Department
embarked on what I believe to be the largest campaign finance investigation in the history of
America.
Shortly after the raid, federal prosecutors convened a grand jury which lasted for nearly two
long and painful years. During that time, federal prosecutors compelled individuals, under the threat
of the United States Department of Justice, to reveal for whom they voted in the presidential election
as well as their history of donations to political candidates. Such acts, which are totally abhorrent
to the First Amendment’s protections of free speech, were carried out under the guise of law
enforcement activity.
In August, the Justice Department indicted the principal members of the Fieger law firm, Mr.
Geoffrey Fieger and Mr. Vernon Johnson. United States v. Fieger, Docket No. 07-20414 (E. D.
Mich.). Like the other cases being reviewed by the Committee, the Justice Department’s case
against Mr. Fieger reeks of political overtones and incomprehensible theories of prosecution.
For instance, Mr. Fieger is charged with violating 2 U.S.C. § 44 If which prohibits making
contributions “in the name of another.” On its face, this statute was enacted to prevent individuals
from sending money to candidates in the names of the dead, the fictitious, or names randomly
gathered up from the phone book. But in the Fieger c^ss;, the Justice Department has charged Mr.
202
ALAN M. DERSHOWITZ
October 22, 2007
Page 2 of 2
Fieger for giving bonuses to his employees who voluntarily made contributions to John Edwards in
their own names and with their own funds. According to the Justice Department, § 44 1 f (prohibiting
contributions “in the name of another”) also prohibits employers from paying bonuses to corporate
employees who make political contributions. With this theory, the Public Integrity Section of the
Justice Department has free reign to charge almost any employer or corporate employee with a crime.
During the course of discovery, it has also been revealed that the Justice Department devised
new tricks to spy on the political activities of American citizens. Specifically, the Justice
Department has been using secret subpoenas to secure financial records for dozens of individuals.
To do this, the government simply gagged the financial institutions from revealing the existence of
its subpoena. To ensure its tactic would work, the Justice Department threatened the recipients of
the subpoenas to keep quiet or else they would be impaling law enforcement activities, in other
wort^ obstructing justice. This is not how the law works. Under 12 U.S.C. § 3413(1) and § 3409,
congress provided the Justice Department with a mechanism to seal the existence of a grand jury
subpoena served on a financial institution. The Justice Department is completely ignoring the law
and has created a new secret subpoena power to investigate the political activities of its targets.
I strongly urge this Committee to take action to stop the politically motivated investigations
currently being carried out by the Justice Department. I am grateful for the Committee’s time in
listening to my concerns.
Sincerely,
/s/ Alan M. Deishowitz
Alan M. I^rshowitz
203
Vicky Paiivos
1700 S. Braymore Drive
Inverness, IL 60010
(224) 875-8356
October 16, 2007
The Honorable John Conyers, Jr.
2426 Rayburn HOB
Washington, D,C. 20515
Dear Chairman Conyers:
I would like to bring to your attention the story of my husband, Peter Paiivos. This story
represents serious issues of injustice from the criminal justice department. Peter Paiivos, a
respected attorney of more 22 years in Chicago, Illinois was recently tried and convicted of
conspiracy to obstruct justice charges. The charges brought by U.S. Attorney Patrick Fitzgerald’s
office stemmed from my husband’s unwillingness to cooperate as a witness against former
Governor George Ryan.
Since my husband did not cooperate, federal prosecutors and agents created a crime,
intimidated witnesses into testifying falsely against my husband and intimidated attorneys into
not disclosing that their clients were forced to testify falsely.
A detailed explanation of crimes created, the actors involved is attached in my report.
The actions of the U.S. Attorney’s office must not go unchecked. To do so, would lead to an
erosion of democracy and fundamental fairness. I urge you to use the power of your committee
to investigate the issues surrounding the conviction of my husband, Peter Paiivos.
Thank you in advance for your assistance. I am available to discuss this matter at your
convenience.
Re^ectfully^^,,^
Vicky PattVOs
Enclosures
Cc: The Honorable Bobby Scott (D-VA)
The Honorable Bobby L. Rush (D-IL)
The Honorable Danny K. Davis (D-IL)
204
Dershowitz, Eiqer & Adelson, P.C.
220 Fifth avenue
BU fTE 300
NBV/YbRK, New YDRH 1000I
NATHAN T OERSHOWITI
VICTORIA B. eiSER
AHY ADEL60H
OANICLA KLARE ELLIOTT
C2I1) S8B-A00B
TELEFAX! (ZIE> BaB-aSSB
E-MAIL! ofRc«#liwde*,eoin
October 22, 2007
The Honorable John Conyers, Jr.
Chairman, U.S. House of Representative
Committee on the Judiciary
2138 Rayburn House OfSce Building
Washington, D.C. 20515
RE: Charles W, Wallcer, Sr.
Dear Chairman Conyers:
Along with the concerns about Governor Siegehnan and George Wilson being
investigated because of pressure from the White Houseand from Karl Rove, there are concerns about
the prosecution ofSenator Charles W. Wallcer, Sr. Senator Wallcer was ahighly prominent African-
American State Senator, who was particularly visible in his efforts to prevent the confederate flag
from flying over the Georgia State Capitol. Senator Walker batfled with Governor Sonny Perdue,
who earlier had been defeated by Senator Walker in a race to become the Senate Majority Leader!
Governor Perdue then switched parties and became a contender for the governorship against Senator
Walker s candidate for Governor. The tension over the confederate flag issue was one of the
underlying issues in the campaign. Governor Peidue^s friend, Richard Thompson, was United States
Attorney. He began investigating a number of prorninent Democrats. A subsequent investigation
by the Justice Department revealed that U.S. Attorney Thompson was carrying out apolitical agenda
with respect to some of his investigations. For example, U.S. Attorney Thompson began
investigations against Terry Coleman, Speaker of the House for the Georgia House of
Representative, State Senator Van Streat, and Senator Majority Leader Charles Walker. He also
subpoenaed records of Governor Roy Barnes. An investigation by the Office of Professional
Responsibility of die Justice Department revealed that U.S. Attorney Thompson had abused his
office and that his initiation of the investigations was not consistent with the standards required by
the Justice Department. After the investigation, U.S. Attorney Thompson resigned. Investigations
against Governor Barnes and Mr. Coleman were dropped, but the investigation against Senator
Walker continued.
Against this background, it is essential for Congress to look into whether the
investigation and prosecution of Senator Walker was motivated by the significant role he played in
Democratic politics in Georgia and because he stood a chance of becoming the next Governor of
1
205
The Honorable John Conyers, Jr.
Chairman, U.S. House of Representative
Committee on the Judiciary
October 22 , 2007
Page 2
Georgia.
Ironically, the case against Senator Walker was tried before a Judge who had been
accused, prior to his nomination, of being a member of private clubs that discriminated on the basis
of race. U.S. District Court Judge Dudley H. Bowen, Jr. had been nominated by Senator Sara Nunn
over the opposition of a number of watchdog groups seeking a diversified federal judiciary. Senator
Walker opposed the nomination.
Senator Walker’s trial raises a number of qi^stions going to the heart of our judicial
system. Among them is the fact that the jury pool was expanded significantly fiiDm a largely
minority population in Augusta, Georgia, to encompass outlining areas of Augusta, which were
predominantly white. Senator Walker’s trial attorney challenged this as a naked attempt to
dramatically change the racial composition of the jury pool.
Thereafter, when a number of whites wa^ challenged under a standard peremptory
system, Judge Bowen, using his own personal standards and not those repeatedly announced by the
Supreme Court, determined that the challenges were not r^e neutral and put four jurors back on the
jury after they knew that they had been stricken. The Eleventh Circuit held that the reasons for
rqecting defense counsel’s peremptory challenges were not supportable. Nonetheless, Qie Court
determined that it would defer to Judge Bowen’s discretion. The issues relating to the jury selection
process will be part of the Petition fora Writ of Certiorari that Senator Walker will be filing in the
Supreme Court.
Underlying this case are two core questions; did politics affect the criminal justice
system and did the judicial system endorse or promote a racially biased jury to secure a conviction
of a visible and upcoming minority Democrat. The examination by Congress of what lies behind
this prosecution and what occurred during this trial is in the highest tradition of the goals and
objectives of Congress.
Very tn^ yours.
NZD:iba
Nafiian Z. Dershowitz
206
Mr. Cannon. First of all, I would like to thank our witnesses for
being here today. This is always difficult, and we appreciate your
coming.
To my colleagues on the Commercial and Administrative Law
Subcommittee and the Crime, Terrorism and Homeland Security
Subcommittee, let me say that I, at least in one way, I am glad
that we are here today. That is we do not often have a chance to
sit together. So it is pleasant to have a joint hearing.
As a preliminary matter, I would like to associate myself with
the comments of the distinguished Ranking Member of the Crime
Subcommittee, in particular his discussion about politics behind
this kind of a hearing. And what I have heard so far from the other
side appear to be these kinds of same wild allegations that we have
looked at continuously, which have been in many particular cases
dispelled and which remain a vast effort of time by this Committee,
by the full Committee, by the Subcommittee on Commercial and
Administrative Law in its oversight process of the U.S. attorney’s
office.
Let me just agree with my fellow Ranking Member that we ought
to be thinking about what the effect of these hearings is on the
stature of this Committee and our Subcommittees, and I might just
add by way of a final note here, a precatory note, that we actually
know why the U.S. attorneys were fired. The majority refuses to
actually look at the facts behind it. But none of the allegations that
have been so flagrantly thrown around have been shown to have
any substance at all in the firing of the U.S. attorneys, and the
damage done to the Justice Department, which I agree has been
done, is in no small part a result of these unsubstantiated allega-
tions, which can be made in the most flagrant fashion from the
dais and yet are subject to cross-examination and dissipation when
we have witnesses and testimony.
I would just mark the sixth anniversary of September 11, 2001,
and since that tragic day, we have witnessed bombings in Bali, the
attack on the Madrid trains, the attack in London at the London
subway, attempts on Heathrow and Glasgow airports. We wit-
nessed the foiling of terror plots, for example, on inbound planes
from France and Germany and elsewhere, and it is thanks to the
heroic and incessant efforts of the Justice Department entities that
we oversee as well as other agencies and our military, that it is the
list of attacks we have foiled and terrorists we have destroyed that
has grown longer, not the attacks on our soil.
But, today, we are talking about our efforts and tools in the war
on terror and the war on crime before the Crime Subcommittee,
and we are not talking about issues of the prosperity and stability
of our economy in the context of commercial and administrative
law, as we would in our Subcommittee. Instead, we are once again
talking about U.S. attorneys and selective prosecutions for political
reasons.
The Commercial and Administrative Law Subcommittee has
spent an inordinate amount of time on this whole project over the
course of this year, and what has come from the investigation is
not much more than a sullied Department of Justice and a partisan
whirlwind for the majority to push on the press in the battle to de-
stabilize that agency. This witch hunt has never really found any-
207
thing that justified the Committee’s extraordinary expenditure of
time, but it kept going.
As one excursion after another has led nowhere, the majority has
simply shifted the targets, changed the allegations and cast its
wrecking ball anew, and so we find ourselves today perhaps at last
at the logical conclusion of this irresponsible distortion of the over-
sight process.
We are summoned by the majority to hold a hearing of these two
important Subcommittees to what end? To turn the partisan lens
on two pending criminal manners. One is on appeal. One is has not
even yet come to trial. The department, of course, cannot appear
to defend itself, the cases are pending, and our witnesses, Mr.
Thornburgh and Mr. Jones, know that. The Members of these two
Subcommittees know that. As a result, we are hard pressed to
come to the truth.
I contend we should not be here at all, and our premature in-
quiry promises nothing other than to undermine the criminal jus-
tice system and perhaps even produce a miscarriage of justice in
these two cases, for every word that those who would attack the
department for these two prosecutions uttered can be broadcast —
in fact, we have cameras here today that are broadcasting — re-
ported in print or reported on the Web in the districts in which the
trials will occur. This hearing will risk tainting the jury pools in
those districts. This is an unfortunate use of Committee time and
resources, and I do not intend to prolong it further by these com-
ments.
I hope at last when we get to the dead-end of all this, we can
move on and help the Justice Department reclaim its appropriate
role in society.
And so with that, Mr. Chairman, I yield back.
Mr. Scott. Thank you, Mr. Cannon.
We have a vote pending, but we would like to complete the state-
ments. So I will call on the Chairman of the full Judiciary Com-
mittee, the Honorable John Conyers, who represents Michigan’s
14th Congressional District.
Mr. Conyers. Thank you. Chairman.
I want to welcome the witnesses personally, and I suppose I
could best use my time by presenting and defending the tremen-
dously important record of the Judiciary Committee. I am not going
to do that because I have been weaving, as the longest-serving
Member and maybe the oldest, a thread through this that runs
something like this.
First of all, this is about the Department of Justice, and it is
about the assistant U.S. attorneys. And we have a real surplus of
them here. I mean, this Committee is very expertly organized
around, first of all, our staff. Mike Volkov, Rob Reid, Mark
Dubester have all served with distinction in the Department of
Justice. In the full Committee among the Members, we have Artur
Davis; we have Mr. Schiff, an assistant U.S. attorney from Cali-
fornia; we have Zoe Lofgren, a district attorney; and we also have
Bill Delahunt, a district attorney from Massachusetts. So that is
the level of research and organizing that has been going on.
Now going along with that thread that encompasses the experi-
ence in this room, we have three attorney generals, one is Dan
208
Lungren. Although he is a state attorney general, he is the only
one we have, and we are proud of that. What I remember best
about Dan Lungren when he was the attorney general of the larg-
est state in the union is that he said that character is doing what
is right when no one is looking, and I think that is marked the way
he has approached our activity across the years.
The second person I would bring to your attention is the Attor-
ney General in the 1940’s, Robert Jackson, who did a lot of other
things beside be Attorney General, but, you know, when he was ad-
dressing the Attorney Generals back in the 1940’s, he made some
observations that our Chairman, Bobby Scott, referenced, and I
want to just remind you how important the job is.
So he talked about how much power U.S. attorneys have. He was
addressing a conference of U.S. attorneys, and he said that they
have more power than almost anybody else in government and, if
it is misused, it has horrible ramifications, and it is in that sense
that he is quoted liberally throughout this hearing and our prepa-
ration for it.
And then the third Attorney General is the one that sits before
us today. You see, I was around when Mr. Thornburgh was the At-
torney General, and he came in under some very difficult cir-
cumstances. There were some big problems which he had to ad-
dress, and he did it in a fashion that reminds me of why he is here
today. This is not an accident. He is still pursuing the ability as
when he was an attorney to make the Department of Justice and
those that serve in it, the U.S. attorneys and everybody else, as ac-
countable and as independent and as impartial as is humanly pos-
sible, and it is that that guides us in this hearing.
What makes me proud is that most of the Members of this Com-
mittee can avoid the notion of dipping into partisanship. It is very
tempting to do in a legislative arena, but we do not do that. We
are mostly trying to improve the justice system. Our hearings here
follow the U.S. attorneys’ firing, I mean, because one of the prob-
lems of the politicization of the Department of Justice was the
abuse of prosecutorial authority, and that is what brings us here.
So, ladies and gentlemen, there is a very logical and reasonable
line of approach here. We want to build the Department of Justice
up. We want it to gain the confidence that it has enjoyed in the
past, and our best way to do it is to shine light on the problem
areas so they will not happen ever again.
I am happy that we have done that, and these hearings are
unique. The Members are absolutely correct this has never been
done before, and I am proud of the fact that it is being done on my
watch because we think that by examining the problems, we are
going to be able to come together and move forward, and so I com-
mend the multiplicity of Chairmen and Ranking Members that are
gathered here this morning, and I am so happy to see the wit-
nesses, and I thank the gentleman.
Mr. Scott. Thank you.
We have just a few moments left on the vote. We will recess the
Committee hearing. It will be approximately 10 minutes. We will
be right back.
[Recess.]
Mr. Scott. The hearing will come to order.
209
We have a distinguished panel of experts from whom we will
hear testimony today.
Our first witness is the Honorable Richard Thornburgh of the
law firm of Kirkpatrick & Lockhart Preston Gates Ellis. Mr.
Thornburgh serves as an active advisor and counselor to the firm’s
government affairs clients with respect to matters concerning fed-
eral, state and local governments. He served as governor of Penn-
sylvania, United States attorney for the Western District of Penn-
sylvania, and was the Attorney General for the United States
under President Reagan and under President George Herbert
Walker Bush. He has a bachelor’s degree from Yale and an LLB
from the University of Pittsburgh Law School.
The next witness will be Donald Shields, professor emeritus at
the University of Missouri at St. Louis. He has conducted extensive
research and authored a document entitled An Empirical Examina-
tion of the Political Profiling of Elected Officials: A Report on Selec-
tive Investigations and-or Indictments by DOJ’s U. S. Attorneys
under Attorneys General Ashcroft and Gonzales. He has a bach-
elor’s degree and a master’s degree from the University of Missouri
and a Ph.D. from the University of Minnesota.
Our final witness will be Mr. Douglas Jones from the law firm
of Whatley, Drake and Kallas. He served as U.S. attorney for the
Northern District of Alabama from 1997 to 2001, and since enter-
ing private practice, he has been appointed as a special attorney
general for the State of Alabama. He holds a bachelor’s degree from
the University of Alabama, a juris doctorate from Cumberland Law
School at Stanford University.
Mr. Thornburgh?
Mr. Thornburgh. Chairman Scott
Mr. Scott. Excuse me.
As you will note the lights before you, we are asking our wit-
nesses to do the best they can to confine their testimony to 5 min-
utes. The light will go from green to yellow to red, which will indi-
cate that the time is up.
I am sorry.
Mr. Thornburgh?
TESTIMONY OF THE HONORABLE RICHARD THORNBURGH,
KIRKPATRICK AND LOCKHART PRESTON GATES ELLIS, LLP,
WASHINGTON, DC
Mr. Thornburgh. Thank you.
Chairman Scott, Chairman Conyers, Chairwoman Sanchez,
Ranking Member Forbes and other Members of the Committee and
Subcommittees, thank you for the opportunity to speak to you
today about the significant dangers and serious harm that can be
caused by the politicizing of Federal criminal investigations and
prosecutions by the U.S. Justice Department.
First and foremost, let me affirm my own belief that politics has
no place in the decision-making process of whether or not to charge
citizens of the United States with any crime — federal or otherwise.
These citizens must have confidence that the Department of Justice
is conducting itself in a fair and impartial manner without actual
political influence or the appearance of political influence. Unfortu-
nately, that may no longer be the case.
210
Let me begin by stating that I come before you as an advocate
representing Dr. Cyril Wecht, the former elected coroner of Alle-
gheny County, Pennsylvania, who is currently under indictment in
the Western District of Pennsylvania and in which proceedings my
firm represents him.
Although the indictment contains 84 counts, it is not the type of
case normally constituting a Federal corruption case brought
against a local official. There is no allegation that Dr. Wecht ever
solicited or received a bribe or kickback. There is no allegation that
Dr. Wecht traded on a conflict of interest in conducting the affairs
of his elected office. None of the traditional indicia of public corrup-
tion are presented in this case.
Instead, the prosecution of Dr. Wecht seeks to use the unprece-
dented theories which seek to convert a hodgepodge of alleged vio-
lations of home rule charters, county codes and state ethic provi-
sions into Federal felonies. Many of these alleged underlying viola-
tions do not even carry state-mandated penalties, yet are now uti-
lized as a vehicle for Federal felony prosecutions which brand the
accused as a corrupt public servant.
A detailed summary of the shortcomings in these charges is set
forth in my written statement, especially at pages four and five,
which I ask be made part of the record.
Suffice it to say, most of the charging accounts allege what I
would call nickel-and-dime transgressions which are sought to be
converted into Federal felony charges. Some of these counts in-
volve, for example, the use of office fax machines for personal busi-
ness, such as the transmission of Dr. Wecht’s curriculum vitae and
fee schedule to a local public defender seeking his assistance and
an executed contract for a teaching engagement, postal charges for
mailing histological slides to attorneys in black lung cases who had
consulted Dr. Wecht and expense billing irregularities in invoices
mailed to Dr. Wecht’s private clients, a number of felony counts de-
rived from alleged improper billing for use of a county car while
traveling to outlying counties to assist local prosecutors and coro-
ners.
Astonishingly, the government’s own evidence indicates that they
knew prior to indictment that an audit of the billings of Dr. Wecht
of the counties in question showed them to be 99.99 percent accu-
rate, a record that was nonetheless turned into 37 separate felony
counts covering a total of $1,700, and the list goes on.
What has come to pass is the realization of the often-expressed
fear that the generality and ambiguity of the mail fraud statutes
could be used to expand Federal jurisdiction so far into matters of
state government that it could be used, as one judge put it, to regu-
late theft of pencils from an office supply cabinet. The Congress
might fairly be asked: Is that what you intended?
A similar expansion of Title 18 USC 666(a)(1)(A) charges that Dr.
Wecht, in each year from 2001 to 2005, stole property valued at
$5,000 or more, charges not based on a classic theft required by
law, but on Dr. Wecht’s use of county personnel, equipment, re-
sources and, yes, space of the coroner’s office to assist in his private
business. We thus found ourselves asking, “Why would the U .S.
attorney’s office for the Western District of Pennsylvania attempt
to make such a stretch of Federal law?"
211
With that background, we came to learn, in part from your Com-
mittee’s investigation, as well as from various news accounts, that
the Department of Justice, in its evaluation of its prosecutors, in
certain cases, fired U.S. attorneys not for performance-based rea-
sons, but for political ones. We came to learn that those United
States attorneys, who, among other things, aggressively pursued
Democrats, as opposed to those who did not, remained in place or
were promoted. In fact, we learned from the study conducted by
Messrs. Shields and Cragan that this Administration is seven
times more likely to prosecute Democrats than Republicans.
Possessed of that information, the prosecution of Dr. Cyril Wecht
takes on a different and troubling light. Dr. Wecht is a prominent
and highly visible Democrat in the predominantly Democratic re-
gion of the Western District of Pennsylvania. He is known nation-
ally and internationally as one of the world’s leading forensic pa-
thologists. He often speaks and is retained to conduct autopsies in
some of the country’s highest profile cases.
In addition to Dr. Wecht’s renown in the area of forensic pathol-
ogy, he has always been a contentious, outspoken, highly critical
and highly visible Democratic figure in Western Pennsylvania. In
other words, he would qualify as an ideal target for a Republican
U .S. attorney trying to curry favor with a department which dem-
onstrated that if you play by its rules, you will advance. Ms. Bu-
chanan must have observed this phenomenon firsthand during her
service as the director of the executive office of U.S. Attorneys.
Dr. Wecht’s case, although high profile, was not the only appar-
ent political prosecution in Western Pennsylvania. In addition to
Dr. Wecht, U.S. Attorney Buchanan conducted highly visible grand
jury investigations of the former Democratic mayor of Pittsburgh
Tom Murphy, and Peter DeFazio, the former Democratic sheriff of
Allegheny County in which Pittsburgh is situated. She also pros-
ecuted some lesser-known Democratic Party members in the sher-
iffs office.
It should also be noted that of these three high-profile, very pub-
lic, Democratic prosecutions, one resulted in a misdemeanor
macing plea, one resulted in no plea and an alternative resolution,
and Dr. Wecht’s case remains pending. All three Democrats were
front-page stories during the run-up to the 2006 elections
During this same period, not one Republican officeholder was in-
vestigated and-or prosecuted by Ms. Buchanan’s office — not one. Al-
though a whistleblower in Republican Congressman Tim Murphy’s
office accused the congressman of using paid staff members in his
election campaign, no investigation was conducted that we are
aware of Despite a local outcry that former Republican Senator
Rick Santorum was defrauding a local community by claiming resi-
dency when he actually resided in Virginia for purposes of having
the school district pay for his children’s cyberschooling, we are
aware of no investigation being conducted.
I cannot and do not opine on the merits of either case, but the
fact that no investigation was undertaken stands out when Demo-
crats in the Western District of Pennsylvania have been inves-
tigated and indicted in such a highly visible manner.
This stands in stark
Mr. Forbes. Mr. Chairman, point of order.
212
Mr. Scott. The gentleman
Mr. Thornburgh, could you summarize quickly the rest of your
testimony?
Mr. Thornburgh. I am about through, Mr. Chairman, and will
do my best.
We have set forth in our written statement to which I refer, once
more, concerns we have about the conduct of the case agent, FBI
agent in this case, and I will refer you to that.
One might argue that Dr. Wecht is entitled to a day in court, and
he will have that day. But the public’s perception of apparent poli-
tics at the Department of Justice will not easily be changed or rem-
edied, no matter the outcome of his trial. Sally Kalson, a veteran
columnist for the Pittsburgh Post-Gazette, wrote in her column of
July 22, 2007, “An ambitious and enthusiastic Bush partisan like
U.S. Attorney Mary Beth Buchanan might well consider Dr. Wecht
a plum target, good for many brownie points at the White House.”
She further wrote, “The jury has yet to convene on Dr. Wecht, but
the verdict on the Bush administration is loud and clear: 100 per-
cent political.”
This is the unfortunate manner in which this Department of Jus-
tice is viewed in the Western District of Pennsylvania.
We should not allow any citizen of the United States to proceed
to trial knowing that his prosecution may have been undertaken
for political reasons as opposed to being done to serve the interests
of justice. Sadly, that appears to have been so in the case against
Dr. Wecht.
And I thank you for the extended opportunity to appear before
you today.
[The prepared statement of Mr. Thornburgh follows:]
213
Prepared Statement of the Honorable Richard Thornburgh
Testimony of Dick Thornburgh
Counsel, Kirkpatrick & Lockhart Preston Gates Ellis LLP
and former Attorney General of the United States
At a Hearing before the Committee on the Judiciary; Sub-Committee on
Crime, Terrorism, and Homeland Security; and Sub-Committee on
Commercial and Administrative Law
of the United States House of Representatives
“Allegations of Selective Prosecution: The Erosion of Public Confidence
In Our Federal Justice System”
Tuesday, October 23, 2007
Chairman Conyers, Ranking Member Smith, Chairman Scott, Ranlcing Member Forbes,
Chair Sanchez, Ranlcing Member Cannon, and members of the Committee and Sub-Committee.
Thanlc you for the opportunity to speak today about the significant dangers and serious harm that
can be caused by politicizing federal criminal investigations and prosecutions by the Justice
Department. With me today are my partners, Jerry S. McDevitt and Mark A. Rush.
First and foremost, let me affirm my belief that politics has no place in the decision-
making process of whether or not to charge citizens of the United States with any crime, federal
or otherwise. Confidence in the U. S. Department of Justice’s decision-malcing authority in
conducting criminal investigations and prosecutions, in particular, must be absolutely paramount.
The citizens of the United States must have confidence that the Department is conducting itself
in a fair and impartial matter without actual political influence or the appearance of political
influence. Unfortunately, that may no longer be the case.
Let me begin by stating that I come before you as an advocate representing Dr. Cyril
Wecht, the former elected Coroner of Allegheny County, who is currently under indictment in
the Western District of Pennsylvania and in which proceedings my firm represents him.
Although the indictment contains 84 counts, it is not the type of case normally constituting a
PI-1S5S061 vl
federal “corruption” case brought against a local official. There is no allegation that Dr. Wecht
ever solicited or received a bribe or kickback. Tliere is no allegation that Dr. Wecht traded on a
conflict of interest in conducting the affairs of his elected office. None of the traditional indicia
of public coiTuption are presented in this case. Instead, the prosecution of Dr. Wecht seeks to
use unprecedented theories which seek to convert a hodgepodge of alleged violations of Home
Rule Charters, County Codes, and State Ethic Provisions into federal felonies. Many of these
alleged underlying violations do not even carry state mandated penalties, yet are now utilized as
a vehicle for federal felony prosecutions which brand the accused as a corrupt public servant.
Dr. Wecht’s case demonstrates that the oft expressed concerns of leading jurists,
academicians, and commentators about the potential for abuse of the federal mail fraud statutes
in political public corruption prosecutions have become reality in this most bizarre prosecution
of one of Pittsburgh’s most colorful, accomplished, and brilliant men, Dr. Cyril Wecht.*
* See e.g. . United States v. Murphy , 323 F.3d 102, 118 (3d Cir. 2003) (“[A] loose interpretation
of the mail fraud statute creates ‘a catch-all political crime which has no use but misuse.’”);
United States v. Handakas , 286 F.3d 92, 107-08 (2d Cir. 2002) (“An indefinite criminal statute
creates opportunity for the misuse of government power. To appropriate Judge Winter’s phrase,
the honest services doctrine renders mail fraud ‘a catch-all . . . which has no use but misuse’”)
(quoting United States v. Margiotta, 688 F.2d 108, 144 (2d Cir. 1982) (Winter, J., dissenting));
United States v. Martin, 195 F.3d 961, 965 (7th Cir. 1999) (Posner, J.) (“Concern has long been
expressed that the failure of the mail fraud statute to define ‘fraud’ invites prosecutorial
overreaching . . . The concern has been exacerbated by Congress’s restoration to the mail fraud
statute of the “intangible rights” doctrine . . .”) (citations omitted); Margiotta . 688 F.2d at 143,
144 (Winter, J., dissenting) (“[W]hat profoundly troubles me is the potential for abuse through
selective prosecution and the degree of raw political power the free swinging club of mail fraud
affords federal prosecutors . . . When the first corrupt prosecutor prosecutes a political enemy for
mail fraud, the rhetoric of the majority about good government will ring hollow indeed”); see
also Cleveland v. United States , 531 U.S. 12, 24 (2000) (Ginsburg, J.) (warning that, in the
context of mail fraud, “unless Congress conveys its purpose clearly, it will not be deemed to
have significantly changed the federal-state balance in the prosecution of crimes”) (quoting Jones
V. United States . 529 U.S. 848, 858 (2000)); Coffey, Jr., John C., Modem Mail Fraud: The
Restoration of the Public/Private Distinction , 35 Am. Crim. L. Rev. 427, 464 (1998) (“Both the
vagueness doctrine and the separation of powers require that judges not view themselves as
215
Specifically, the concern that the generality and ambiguity of the mail fi'aud statutes could be
used to expand federal jurisdiction so far into matters of state government that it could be used to
regulate theft of “pencils from the office supply cabinet” has now come to pass.^ Indeed, one
central tenet of this prosecution, reflected in 23 of the counts, is that Congress made it a federal
felony under the “honest services” branch of wire fraud to use an office fax machine for personal
business. Not only is use of the office fax now a federal felony, so too is the use of “space” in
the public office for items unrelated to the discharge of office, such as storage of personal files.
That is now to be treated as the requisite “theft” within the meaning of 1 S U.S.C. § 666, a statute
which has also been used aggressively in the public corruption cases this Committee is
investigating. The Congress might fairly be asked — “Is that what you intended?”
To date, no federal prosecutor in the Western District of Pennsylvania has ever made
such an expansive assertion of federal power in the numerous political corruption cases brought
through the generations of Allegheny County politics. Such an expansive view of federal
criminal jurisdiction effectively transforms common everyday events in the public workplace
into federal felonies. Under the expansive view of mail fraud jurisdiction asserted in this case,
there is nothing done in a state official’s office unrelated to the official function of office which
is not capable of being treated as a federal felony, with the power to prosecute for such alleged
infractions placed in the discretion of the political party in power, as is the case here. Although
this exceedingly broad and liberal view of federal jurisdiction in derogation of powers reserved
to the state is being used here to prosecute a Democrat, if it becomes precedential, the same legal
authorized by § 1 346 to expand the net of criminal liability as seems appropriate from time to
time in light of the current social and political climate.”).
^ See United States v. Panarella . 277 F.3d 678, 692 (3d Cir. 2002).
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216
principles will henceforth be available to any party in the future to wage war against political
opponents using the federal courts.
Pemiit me to take a moment to review the 84 Count Indictment of Dr. Wecht to better
illustrate the foregoing.
The Indictment opens with the charge that the mere use of the Coroner’s fax macliine
four times in 2002, eleven times in 2003, eight times in 2004, and once in 2005 for personal
business should be treated as 24 federal felonies.
Assuming the cost of a fax is one dollar, the “theft” of $24 worth of the office ink and
paper over four years is now pyramided to twenty-four federal felonies. Even salutary uses of
the office fax are now federal crimes. Count 20 alleges it was a wire fraud for Dr. Wecht to use
the Coroner’s fax machine to transmit his curriculum vitae and fee schedule to a public defender
in a homicide case where the court had appointed him to provide his forensic pathology
expertise. Merely faxing an executed contract for a teaching engagement is the crime charged in
Count 4.
Counts 25-32 alleging honest services mail fraud are no better. The alleged mail fraud in
those counts consists of the use of the office mail to send eight histological slides, mostly to
attorneys in black lung cases who had consulted with Dr. Wecht seeking justice for their clients.
Assuming that postage charges were 39 cents, the mere use of $3.20 of postage to mail four
histological slides in 2003, and another four in 2004, is transformed into eight federal felonies.
The structure of the Indictment then segues into 47 felony charges of alleged privat e mail
fraud in cormection with expense billings to Dr. Wecht’s private clients. Counts 33-42 allege
expense billing irregularities in invoices sent to various attorneys throughout the country in cases
where Dr. Wecht served as their expert. This is alleged to have occurred four times in 2002,
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twice in 2003, thrice in 2004, and once in 2005. None of these clients ever claimed to have been
defrauded, and many were not even interviewed before the charges were made.
The second component of Dr. Wecht’s private matters is thirty-seven felony charges of
mail fraud in connection with mileage charges. All these charges are based on the premise that
Dr. Wecht used a county car when traveling to outlying counties to assist district attorneys and
coroners in state criminal prosecutions and that he should not have charged the mileage charges
because he used a county car. The total amount involved in all 37 of these alleged federal
felonies over five years is $1,147.15, $229.43 per year, and an average of $31.00 per count. In
fact, the Govermnent’s own evidence demonstrates that the total amount of the charged mail
fraud in the 37 felony counts is .001 percent of the fees earned by Dr. Wecht during that period.
Counsel for Dr. Wecht is unaware of any citizen ever being charged in the Western District of
Pennsylvania (or elsewhere) with mail fraud charges of this nature.
The Indictment concludes with an equally radical expansion of 18 U.S.C. 666(a)(1)(A)
by five counts which allege that, in each year from 2001 to 2005, Dr. Wecht stole “properly
valued at $5,000 or more.” No allegation is made of anything remotely approximating the
“classic theft” required by law for such a prosecution. Likewise, no “property” within the
meaning of the charging statute is alleged to have been stolen. Instead, the sole premise is that
Dr. Wecht’s alleged use of county personnel, equipment, resources and yes, “space,” of the
Coroner’s office to assist in his “private business activities” is the requisite “property”. In other
portions of the Indictment, these same items are refemed to not as “property” but as office
“resources.” Under this amorphous theory, the Government actually contends it does not even
have to prove the value of the “property” allegedly stolen — just somehow that it is at least
218
There is, therefore, no serious question but that this prosecution is an extreme attempt to
extend the reach of federal prosecutorial power far beyond traditional boundaries to the point
where federal prosecutors determine how elected state officials use state cars, who does the
typing, what they type, and the use of public office “space.” Again, I suggest these do not seem
to be the types of activities that Congress intended to criminalize federally.
We thus find ourselves asking, “Why would the U.S. Attorney’s Office for the Western
District of Pemisylvania attempt to make such a stretch of federal law?”
With that background, we came to learn in part from your Committee’s investigation, as
well as various news accounts, that the Department in its evaluation of United States Attorneys,
in certain cases, fired United States Attorneys, not for performance-based reasons but for
political ones. We came to learn that those United States Attorneys who, inter alia , aggressively
pursued Democrats, as opposed to those that did not, remained in place or were promoted. In
fact, we learned from the study conducted by Donald Shields and John Cragan, from the
University of Minnesota, that this Administration is seven times more likely to prosecute
Democrats than Republicans. Possessed of that information, the prosecution of Dr. Cyril Wecht
takes on a different and troubling light.
Dr. Wecht is a prominent and highly visible Democrat in the predominantly Democratic
region of the Western District of Pennsylvania. He is known nationally and internationally as
one of the world’s leading forensic pathologists. He often speaks and is retained to conduct
autopsies in some of this country’s highest profile cases. In addition to Dr. Wecht’s renown in
the area of forensic pathology, he has always been a contentious, outspoken, highly critical and
highly visible Democratic figure in Western Pennsylvania. In other words, he would qualify as
an ideal target for a Republican U.S. Attorney trying to cuny favor with a Department which
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219
demonstrated that if you play by its rules, you will advance. Ms. Buchanan must have observed
this phenomenon first hand during her service as the Director of the Executive Office of U.S.
Attorneys.
Dr. Wechf s case, although high profile, was not the only apparent political prosecution
in Western Permsylvania. In addition to Dr. Wecht, U.S. Attorney Buchanan conducted highly
visible grand jury investigations of the former Democratic Mayor of Pittsburgh, Tom Murphy,
and Peter De Fazio, the fonner Democratic Sheriff of Allegheny County (in which Pittsburgh is
situated). She also prosecuted some lesser-known Democratic Party members in the Sheriffs
Office. It should also be noted that of these three high profile, very public, Democratic
prosecutions, one resulted in a misdemeanor macing plea; one resulted in no plea and an
alternative resolution; and Dr. Wechf s case remains pending. All three Democrats were front-
page stories during the run-up to the 2006 elections. The damage was done by widespread media
coverage with little apparent concern as to whether justice was meted out.
During this same period not one Republican officeholder was investigated and/or
prosecuted by Ms. Buchanan’s office. Not one. Although a whistleblower in Republican
Congressman Tim Murphy’s office accused the Congressman of using paid staff members in his
election campaign, no investigation was conducted that we are aware of. Despite a local outcry
that former Republican Senator Rick Santorum was defrauding a local community by claiming
residency, when he actually resided in Virginia, for the purposes of having the school district pay
for his children’s cyber schooling, we are aware of no investigation being conducted.
I cannot and do not opine on the merits of either case, but the fact that no investigation
was undertaken stands out when Democrats in the Western District of Pennsylvania have been
investigated in such a highly visible manner.
- 7 -
In the one instance where Republican State Representative Jeff Habay was prosecuted for
using paid staffers for political campaigning, the U.S. Attorney took no action and let the local
Democratic District Attorney prosecute the representative.
Allow me to now turn to certain other troubling aspects of tire investigation and
prosecution of Dr. Wecht that, in our view, further evidence that this prosecution may have
involved more politics than justice.
The case opened with television coverage of search wamants being executed in Dr.
Wecht’s Coroner’s office. These warrants were, in our view, general, overly broad, and clearly
drafted as part of a Government fishing expedition. We would later learn that one of the FBI
agents prominently depicted during the TV coverage of this search of a local political
Democratic row office was one Bradley Orsini. It turns out that Agent Orsini of the FBI’s Public
Corruption Squad, the case agent for Dr. Wecht’s case and the case against the former mayor,
has an unseemly past. Agent Orsini, while in Newark, New Jersey, was investigated for years by
the FBI’s Office of Professional Responsibility (“OPR”) and was found to have falsified official
records and FBI Fonn 302s. He was reprimanded twice for falsification of evidence spanning
years, demoted and suspended without pay for 30 days and placed on probation for one year
before transferring to Pittsburgh in September 2004. According to the OPR’s own conclusion,
they were unable to detennine the extent of the taint on all the evidence Orsini falsified. We
recently learned in court proceedings that Orsini never signed another search warrant application
for years following his reprimands. The first and only search warrant applications he has ever
done since his reprimands were on April 7, 2005, when he executed thi'ee affidavits in
applications for search warrants in the Dr. Wecht investigation. In the recent evidentiary
hearings, Agent Orsini admitted he directly violated the Department of Justice’s December 1996
221
Giglio Policy by not disclosing his past history of falsification of evidence to the prosecution.
Department of Justice “Giglio Policy,” see www.usdoj.gov/org/ag/readingroom/agmemo,htm.
We further learned during recent hearings that, after these three search wairants were obtained, a
prosecutorial decision was made to remove him from the warrant process and to attempt,
unsuccessfully, to conceal his past from the defense and the public by filing for a protective
order causing litigation that went all the way to the Third Circuit Court of Appeals in an effort to
conceal his past. During that process, the Justice Department had advised three separate Courts,
including the Court in the Wecht case, that the Government would not be sponsoring Agent
Orsini as a witness. Despite all these in'egularities, he remains the case agent on Dr. Wecht’s
case, and he was actually “promoted” to supervisor of an administrative unit effectively
removing him from taking oaths following the disclosure of his past.
When the investigation of Dr. Wecht moved into the grand jury phase, it was not in secret
as one would expect. There were frequent news reports concerning the investigation as it
proceeded. The very public aspects of this case continued, culminating in a rambling news
conference in January 2006 by Ms. Buchanan, where she touted the 84-count Indictment against
Dr. Wecht. Interestingly, the press conference opened with a speech about the importance of
public corruption cases, and how the Indictment restored faith and confidence in government
officials. Ms. Buchanan then proclaimed that Dr. Wecht had provided imclaimed cadavers to a
local Catholic university in exchange for lab space — an allegation which we will prove to be
totally false and unfounded at trial, and which was never even discussed in pre-indictment
audiences with Ms, Buchanan and her staff. Predictably, Dr. Wecht, the Democrat, scientist and
educator, was forthwith labeled a “body snatcher” and a media feeding frenzy ensued. Ms,
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222
Buchanan thus succeeded in the Department’s apparent mission of casting Democrats in a
negative light during the election year.
When the defense began to speak about problematical aspects of the case, Ms.
Buchanan’s office literally caused the specter of imprisonment to be held over counsels’ heads,
including immediately after we had fought successfully to expand the rights to speak by a Third
Circuit decision indicating the public had a right to hear our views on the case. Ms. Buchanan’s
attempts to imprison us for commenting on her actions in the week before she made a behind-
close-doors appearance to this Committee were given widespread publicity in local media
outlets.
One might argue that Dr. Wecht is entitled to his day in court and he will have that day.
But the public’s perception of apparent politics at the Department of Justice will not be easily
changed or remedied, no matter the outcome of his trial. Sally Kalson, a veteran columnist for
the Pittsburgh Post-Gazette, wrote in her column of July 22, 2007, “An ambitious and
enthusiastic Bush partisan like U.S. Attorney Mary Beth Buchanan might well consider Dr.
Wecht a plum target, good for many brownie points at the White House.” She frirfher wrote,
“The jury has yet to convene on Dr. Wecht, but the verdict on the Bush Administration is loud
and clear: 100 percent political.” This is the unfortunate manner in which this Department of
Justice is viewed locally.
We should not allow any citizen of the United States to proceed to trial knowing that his
prosecution may have been undertaken for political reasons as opposed to being done to serve
the interests of justice. Sadly, that appears to have been so in the case against Dr. Wecht.
Congress may wish to consider reviewing and revising the relevairt statutes which the
current Administration used in a manner that is unprecedented and that seems well beyond what
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223
Congress intended. The learned Judge Frank Easterbrook from the Seventh Circuit in United
States V. Thompson . 484 F.3d 877 (7th Cir. 2007) recently expressed the growing misgivings of
federal courts regarding overzealous applications of §§ 666 and 1346 while reversing a
problematical conviction with political overtones:
Sections 666 and 1346 have an open-ended quality that makes it
possible for prosecutors to believe, and public employees to deny,
that a crime has occuiTed, and for both sides to act in good faith
with support in the case law. Courts can curtail some effects of
statutory ambiguity but cannot deal with the source. This
prosecution, which led to the conviction and imprisomnent of a
civil servant for conduct that, as far as this record shows, was
designed to pursue the public interest as the employee understood
it, may well induce Congress to take another look at the wisdom of
enacting ambulatory criminal prohibitions. Haziness designed to
avoid loopholes tlirough which bad persons can wriggle can
impose high costs on people the statute was not designed to catch.
l± at 884.
We ask for Congress to take such a look on the basis of the facts involved in Dr. Wecht’s
prosecution.
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224
Mr. Scott. Thank you, Mr. Thornburgh.
Professor Shields?
TESTIMONY OF DONALD SHIELDS, PROFESSOR,
UNIVERSITY OF MISSOURI-ST. LOUIS, KANSAS CITY, MO
Mr. Shields. Mr. Chairman, thank you for this opportunity.
First, you may be wondering how a communication professor
comes before Congress with information about political abuses of
the Justice Department, and I want to tell you that that is a valid
question.
At the University of Minnesota where I received my Ph.D., Dr.
Ernest Bormann developed a communication theory called symbolic
convergence. Communication, including political communication,
consists of dramatized messages that, when shared by other people,
can turn into a rhetorical vision that catches up large groups of
people into a similar symbolic reality.
Now symbolic reality may have nothing to do with actual reality.
To cite a famous example, Barry Goldwater in 1964 was not actu-
ally a dangerous warmonger.
For three decades or more, I have studied and applied symbolic
convergence theory to political messaging on a national level. With
the collapse of Communism, a real question arose as to what would
replace anti-Communism as the dominant rhetorical theme among
American conservatives. Then when John Ashcroft became Attor-
ney General, he announced a major DOJ initiative against public
corruption. The study I report to you began as a means of tracking
participation in this new neoconservative anti-corruption rhetorical
vision.
To do the tracking, I compiled a list of the publicly reported Fed-
eral investigations and indictments of elected officials. I went be-
yond the national media to the local media, and that proved the
key that unlocked Pandora’s box. By accident, I made the discovery
that the Justice Department, acting below the radar of the national
media, was investigating and indicting local Democratic officials at
a rate much higher, and local Republican officials at a rate much
lower, than the percentage of each in the population of elected offi-
cials, and the DOJ continues to do so throughout 2007.
Nationally, the party affiliation of elected officials is roughly 50
percent Democrat, 41 percent Republican, and 9 percent Inde-
pendent. These national percentages are closely reflected in my
control group study of the investigation and arrests of 251 elected
officials and candidates by nonfederal law enforcement at the state
and local level. These investigation rates mirror the national per-
centages of 50 percent Democrat, 41 percent Republican, and 9 per-
cent Independent-Other.
When I began my study of the U.S. attorneys, these were the re-
sults I anticipated, that is no significant difference between the ob-
served percentages and the actual percentages.
To the contrary, however, when it comes to investigation and in-
dictment of local officials by the DOJ, the numbers are staggeringly
disproportionate: 80 percent Democrats, 14 percent Republicans, 6
percent Independent. That is 5.6 Democrats investigated for each
Republican, 5.6 to 1, when the ratio should be 1.2 to 1, and that
225
is out of 820 investigations now, Mr. Chairman, not the 375 you
referred to.
These numbers speak clearly that Federal investigations and
prosecutions of local officials are highly disproportionate, so much
so that the possibility of such a difference occurring by chance ex-
ceeds the .0001 level. That is less than one chance in 10,000.
So there is political bias — I call it political profiling — in such se-
lective investigation and prosecution rates. The question that could
not be answered until now concerns whether the bias has been a
bias of individual prosecutors or a policy-driven bias. Both biases
translate into the selective investigation and prosecution, however.
And the numbers do not lie. They represent real people with real
faces, people like Puerto Rico’s Governor Anibal Vila; Alabama’s
former Governor Don Siegelman; Allegheny County, Pennsylvania’s
former coroner Cyril Wecht; Michigan’s former attorney general
candidate Jeffrey Fieger; Michigan’s Carl Marlinga, a prosecutor
and congressional candidate; or Mississippi Supreme Court Justice
Oliver Diaz, Jr.
Each of these investigations and indictments were suspect. The
anecdotal stories and facts behind these cases need to be told. They
and others like them show both the tenacity and the zeal with
which the DOJ has selectively investigated and selectively pros-
ecuted Democrats, elected officials and candidates.
Other recent revelations concerning the firing of a number of
U.S. attorneys for not prosecuting Democrats or for prosecuting Re-
publicans would seem to indicate that the political profiling is very
much a policy-driven bias coming directly from the Office of the At-
torney General and perhaps even the White House.
Regardless of the origin of political profiling and regardless of the
party being targeted. Congress, I think, has the obligation to pro-
tect against this abuse. Because the powers of Federal law enforce-
ment are so great and the political abuse of those powers so un-
speakably dangerous. Congress must act. My written statement
provides several suggestions for Congress to consider.
[The prepared statement of Mr. Shields follows:]
226
Prepared Statement of Donald C. Shields
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271
Mr. Scott. Thank you, Professor.
Attorney Jones?
TESTIMONY OF G. DOUGLAS JONES, ESQUIRE, WHATLEY,
DR AK E AND KALLAS, BIRMINGHAM, AL
Mr. Jones. Thank you, Mr. Chairman.
It is a privilege to he back. I testified before Chairman Scott’s
Committee earlier this summer on the Till bill which I still hope
will pass both Houses so that we can further investigate and pros-
ecute the unsolved crimes of the Civil Rights era.
For today, we are here on a much more disturbing topic that, I
believe, has significantly damaged the credibility of the Depart-
ment of Justice, and that is the role of partisan politics in recent
criminal investigations. I want to echo what my colleague at the
other end of the table, former Republican Attorney General Dick
Thornburgh, said. Partisan politics plays no role in either the in-
vestigation, the prosecution or the timing of cases, and, unfortu-
nately, that does not appear to be the case with the current Admin-
istration.
Mr. Chairman, I have submitted a lengthier written testimony
that I know will be made part of the record. I would like to just
spend a few moments to sum up the timeline of the Governor
Siegelman investigation that goes back to 1999 at a time when I
was still a United States attorney.
Governor Siegelman, who had been a force in Alabama politics,
probably the most dominant force in state politics as a Democrat
since he first took office in 1978, was elected governor in 1998 and
assumed office in January 1999, and it seemed that no sooner had
he taken office that certain investigators and lawyers and the at-
torney general’s office of the State of Alabama targeted him for in-
vestigation.
Now, ultimately, those charges brought against a Siegelman sup-
porter in 2001 did not include Governor Siegelman. In fact, he was
not named as a co-conspirator, and his name was rarely mentioned
even in the trial.
But it was in 2001 and 2002 that a separate investigation also
started. It was being prosecuted jointly with the U.S. attorney’s of-
fice out of Montgomery. The allegations involved corruption among
one of Governor Siegelman’s Cabinet members, Nick Bailey, and a
supporter named Lanny Young.
Clearly, those two individuals had committed crimes. It was brib-
ery that Nick Bailey testified to that Governor Siegelman had no
knowledge about, but very quickly the investigation turned the
crosshairs on to Governor Siegelman.
I did not represent Governor Siegelman at the time. I did not
begin to represent him until 2003, following the death of his coun-
sel, David Johnson, but one of the first things that we did in 2003
was to visit with the U.S. attorney’s office and the Alabama attor-
ney general to discuss the case, to tell them that we did not believe
that politics should be involved in this case, but we were concerned
about timing and that this case needed to move forward. Governor
Siegelman had lost the election in 2002 and now was very obvi-
ously going to run again in 2006.
272
We were assured that it would not, and I believed that. I be-
lieved it then, and I believe it today, that at that point politics may
not have played a role. There were allegations that needed to be
looked at and, as a prosecutor, I know that you have to look at seri-
ous allegations no matter who it is.
But in 2004, all of a sudden, a case that had originated in 1999
and resulted in a conviction of Dr. Bobo and had been reversed
came back and, for the first time. Governor Siegelman is included
in an indictment out of the clear blue sky. It came as a complete
shock to us that Don Siegelman was included in May of 2004 in
that indictment as a co-conspirator with Dr. Bobo.
I detail this more in my statement, my written statement, Mr.
Chairman.
The case is ultimately dismissed. I was recused in that case, but
continued to work on the case out of Montgomery.
In the summer of 2004, while the case in Birmingham was pend-
ing, we met with U.S. attorneys in Montgomery. We were told at
that time that they had written off most all of the charges that had
been looked at for 2 years or more against Governor Siegelman,
that they had narrowed their focus to three charges, including one
that involved Mr. Scrushy. They wanted us to extend the statute
of limitations because they had just not quite got the evidence they
needed, which we did, we gladly did, because we were convinced
that there was no crime and that no amount of time would result
in finding evidence to support a crime. This was in July of 2004.
We did not extend the statute of limitations again, although we
were asked to do that. Instead, I continued to call. We were prom-
ised in the summer of 2004 that an answer would be given to us
within the month, that they would make a decision, that the case
needed to move. It came and went. The month came and went. I
kept calling.
What is interesting is that in October of 2004, the case in Bir-
mingham was dismissed. Governor Siegelman’s case was thrown
out on a motion of the government after an adverse ruling by
Judge Clemens. A month later, in November of 2004, I again had
discussions with the assistant U.S. attorney in Montgomery. At
that time, we were told very specifically that they had had a meet-
ing in Washington and that Washington had told them to go back
and review the case top to bottom.
What resulted in 2005 was not, Mr. Chairman, simply a review
of the case. It was a wholesale renewed investigation, casting wider
nets, subpoenaing more records, allegations that were off the table
were back on, new allegations that came forward that ultimately
resulted in charges. All of this was absolutely stunning and a com-
plete reversal of what we had been told only a few months before.
I ultimately did not represent Governor Siegelman at trial be-
cause of a trial conflict that I had in Birmingham, but there is no
question in my mind the Department of Justice in Washington
were integrally involved, despite the statements made by the acting
U.S. attorney in Montgomery. The case was working out of Wash-
ington. They were an integral part of the case. I think the evidence
clearly demonstrates that.
Mr. Chairman, finally, as a wrap-up, let me just say that I un-
derstand that here in Washington and within the beltway, this
273
hearing would appear to be driven by politics, but I can assure you,
as is attested to by the fact that you have both a Republican and
a Democrat on this panel, that across the country, people who have
worked in the Department of Justice are concerned, and they see
a disturbing trend and a trend that involves partisan politics that
should never be the case.
Resources have to be used appropriately and, in this case, Mr.
Chairman, when partisan politics are involved, it will undermine
the entire credibility of the system, taint any jury verdict that
could come out and erode the confidence of the public. It is as I
said in my statement.
Dr. King once said that injustice anywhere is a threat to justice
everywhere, and that, I think, is happening across the country
today, Mr. Chairman.
Thank you.
[The prepared statement of Mr. Jones follows:]
274
Prepared Statement of G. Douglas Jones
Before the Subcommittee on
Crime, Terrorism & the Homeland Security
and
the Subcommittee on Commercial & Administration Law of the
Committee on Judiciary, U.S. House of Representatives
Testimony of
G. Douglas Jones
Attorney with Whatley, Drake & Kallas, LLC. Birmingham office
and former United States Attorney for the Northern District of Alabama
“Allegations of Selective Prosecution: The Erosion of
Public Confidence in our Federal Judicial System”
October 23, 2007
275
Thank you Mr. Chaimian.
I am Doug Jones, a partner in the Binningham office, of the law finn of Whatley, Drake
& Kallas. I am a former staff counsel for the Senate Judiciary Committee, where I worked for
the late Senator Howell Heflin of Alabama. I was Assistant United States Attorney in
Birmingham from 1980-1984 and from 1997-2001 I was the United States Attorney for the
Northern District of Alabama. I had the honor of testifying before this Committee earlier this
summer about our work in prosecuting the two former members of the Ku Klux Klan for the
1963 bombing of the 16^'' Street Baptist Church in Binningham and the importance of passing
the Emmett Till Bill that will provide funding to investigate and prosecute unsolved crimes of
the Civil Rights Era.
I am here today, however, on a more disturbing topic that has significantly damaged the
credibility of the Department of Justice- the role of partisan politics in the recent criminal
investigations. It goes without saying, Mr. Chairman, that the criminal justice system should be
blind to the political affiliations of the party in power or of those who may be the subject or
target of criminal investigations. Unfortunately, recent revelations about the firings of certain
U.S. Attomeys by the Administration, and media reports about a number of cases across the
country have heightened concern that partisan politics have played a significant role in decisions
of the Department of Justice, unlike at any other times in the Department’s history. For those
who have been in any position of responsibility at the Department, it is a disturbing trend.
I have been asked to testify today about my knowledge of the facts surrounding the
investigation, indictment and conviction of former Alabama Governor Don Siegelman. a
Democrat who held the officer of Governor from January of 1999 to January of 2003. Governor
Siegelman had been a major political force in Alabama for over 2 decades, having lost only one
2
276
statewide primary election since his first election as Secretary of State in 1978. I had been his
friend and supporter for many j'ears, but first became his lawj'er in the spring of 2003 following
the untimely death of his previous attorney earlier that year.
My know'ledge of a criminal investigation w'here Gov. Siegelman w'as targeted goes back
to the spring of 1999 w'hen I w'as the U.S. Attorney in Birmingham. It seemed that no sooner had
the ink dried on his oath of office, investigators and certain law'yers w'ith the Alabama Attorney
General’s office targeted Gov. Siegelman for investigation. The investigation began with
allegations that a Siegelman supporter from Tuscaloosa, Dr. Phillip Bobo, had committed
Medicaid fraud by attempting to rig a bid for a state contract for the delivery of health care
services. When my office was contacted about jointly investigating these allegations, as we had
done in other cases with the Attorney General, we assumed that it was because Tuscaloosa is in
tire Northern District of Alabama, rather than tlie Middle District of Alabama that included tire
state capitol of Montgomery. In a meeting with my assistants, however, it became obvious that
these Assistant Attorneys General did not see this as simply a Medicaid fraud case, but one of
public corraption in Montgomery that they "hoped” — their words not mine — would reach the
highest level of the Siegelman administration, even though there was no evidence to suggest that
at that point. They also made it clear they were coming to the Northern District because they did
not trust my friend and colleague, Redding Pitt, the U.S. Attorney in the Middle District, because
a decade earlier he had worked for Don Siegelman as an Assistant Attorney General. The
suggestion was both insulting and unprofessional and 1 refused to be a party to such an end run
on what clearly should be focused in Montgomery.
Attorney General Bill Pryor, a Republican who had been appointed Attorney General
when Jeff Sessions was elected to the Senate, and won election in 1998, the year Don Siegelman
3
277
was elected govemor, personally came to Birmingham to discuss my decision and to ask that I
reconsider. Now a judge on the 11*'' Circuit Court of Appeals. Bill Pryor had taken office only a
few months before I had and in the short time that we worked together on various matters he
became a trusted colleague and friend and it was that reason and that reason alone that he
thought that our two offices should work together on the Bobo investigation. He did not in any
way condone what had been represented by his assistants and we both agreed that the
investigation should follow the facts as they were developed, no matter where they might lead. I
explained, however, that I simply could not overlook his assistants’ stated purpose and therefoi'e
we declined to be involved and a joint federal-state investigation begun in the Middle District.
I would also like to say at this point that the statements made to me by Attorney General
Pryor were entirely consistent with every experience I had with him. Despite the fact that he
somehow seems to be touched with the broad brush of allegations of partisanship in this matter,
the fact is that Bill Pryor has never advocated an investigation for any reason other than that
which the law requires, the investigation of criminal activity without regard to political
affiliation. He never shied away from tough public conaiption cases, but 1 never saw him pursue
any criminal matter for partisan political puiposes. Had I seen any evidence of that in the years
we worked together, 1 would have never supported his nomination to the 1 1"' Circuit Court of
Appeals as I was proud to do.
My office had no further involvement in this matter until early in 2001. over 2 years later,
and after the Presidential elections. It was at that time that my colleague in the Middle District
called and asked for a meeting about the Bobo matter. He explained that not only had the
investigation failed to reach the highest levels of the Siegelman administration, but that there was
no suggestion of public corruption at all, leaving only what appeared to be allegations of
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Medicaid fraud committed in the Northern District, not in the Middle District. He therefore
requested the opportunity to have his assistants and the assistants in the Attorney General’s
office present the case to a Northern District grand jury. I certainly was not going to turn down
such a request, but told him that his personnel must handle the case from start to finish because
my office had other matters pending, including the upcoming church bombing cases, and our
resources were too thin to take on the Bobo matter. Dr. Bobo was indicted and convicted later
that year, but his case was overturned on appeal. It is my understanding that at no time during
the course of the trial was Governor Siegelman ever mentioned, much less designated, as a co-
conspirator with Dr. Bobo.
I left office in June 2001 following the first of the church bombing prosecutions. It was
not long thereafter, following a series of newspaper reports about a state warehouse contract
involving an individual named Lanny Young, that it became widely known tliat Governor
Siegelman was again in the cross-hairs of criminal investigators. Recent media reports have
detailed interviews with Mr. Young as early as the summer and fall of 2001. The investigation
was once again being conducted by the same attorneys and investigators from the Attorney
General’s office with new personnel from the U.S. Attorney’s office in the Middle District. 1
followed that investigation only as it played out in the media leading up to the 2002
gubernatorial election. There was a series of what appeared to be grand leaks that prompted
Governor Siegelman’s attorneys to call for the recusal of the new U.S Attorney in Montgomery,
whose husband was active in Republican politics. The U.S. Attorney, Ms. Canary, ultimately
recused herself from the investigation.
Clearly, the investigation in Montgomery had uncovered serious criminal conduct
between Mr. Young and Mr. Bailey that ultimately resulted in guilty pleas by both men to
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various federal charges. It was equally clear that both men hoped to minimize their prison time
by providing information that wouid assist investigators in bringing criminal charges against
Gov. Siegeiman. Aiiegations of improper payments toward the purchase of a motorcycie and
four-wheeier ATV kept surfacing in the media.
Governor Siegeiman narrowly lost the 2002 elections to his Republican opponent Bob
Riley. Less that 7 or 8000 votes separated the 2 candidates and I frankly believe that the
investigative leaks leading up to November cost Governor Siegeiman his re-election bid.
In January 200.2, Governor Siegelman’s lawyer, David Cromwell Johnson, died
unexpectedly. A couple of months later Governor Siegeiman hired me as his lead counsel.
Aside from assembling the files from the Governor’s former attorney, and beginning my
investigation, the first order of business was set up a meeting with prosecutors in Montgomery. I
called my friend, the Attorney General Bill Pryor, and told him tliat I was now representing
Governor Siegeiman and that my partner and I would like to come down to discuss the case, not
in detail, but more as a courtesy to meet others involved and to let them know of our
representation. By this time, the First Assistant in the U.S. Attorney’s office, Ms. Weller, has
been designated Acting U.S. Attoimey. The Public Integrity Section of our Department of Justice
had also assigned an attorney. John Scott, to work the case and it was requested that our meeting
take place when he could be in Montgomery.
My partner. Jack Drake, and I traveled to Montgomery in the spring of 2003 and met in
the Attorney General’s office with Attorney General Pryor, one of his assistants. Ms. Weller and
Mr. Scott. Again, this was a courtesy meeting and very little substance was discussed. I did.
however, make a point of telling them that I did not believe the Governor had done anything
wrong, but that as a former prosecutor I understood that some time was needed to sort through
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the evidence. I also told them that it was not my intention to hit the media with allegations of
polities as had been raised by the Governor’s previous attorney because I had too much respect
for Attorney Generai Bill Pryor and the Department of Justice. I did state, however, that the
investigation had already gone through one election, and that it needed to be resolved as quickly
as possible. I also said, however, that if the investigation continued to play out in the media
through the next election, and beyond, then it would, in my opinion, raise the specter that
partisan polities was at play. We were assured by everyone that polities had no role and that they
would move expeditiously. 1 was then, and still am today, comfortable that those were true
statements.
For the next year, the investigation continued. During this time we were attempting to do
our own work, leant the facts and to keep up as to where we thought the investigation was
headed. We had little contact with prosecutors in Montgomery during this time and my friend
Bill Pryor leaves office in February following his appoint to the Court of Appeals. Then in late
May, early June of 2004, 1 get a call from a friend who tells me that the U.S, Attorney in
Bimiingham, not Montgomery, is about to announce a major public corruption indictment and
that he thought it was Governor Siegelman. I initially shrugged it off as en oneous because there
had never been any indication whatsoever that the Governor was being investigated in
Birmingham. I was wrong. We learned for the first time at the press conference that Governor
Siegelman had been indicted along with his former Chief of Staff and Dr. Phillip Bobo. This
news was a complete shock and I had to stop the Governor before he boarded a plane to New
York to give him the news. The case against Dr. Bobo that had started in 1999 now, for the first
time, included Governor Siegelman. Moreover, the former Assistant Attorney General who told
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my staff that he hoped the Bobo investigation would go to the highest levels of the Siegelman
administration was now the Assistant U.S. Attorney in Birmingham handling the 2004 case.
Other than an initial contact with the Government to make sure that they were not going
to seek arrest and perp walk the Governor, I had nothing to do with the defense of the
Birmingham case. The Government made it clear from the outset that they were going to seek to
have me recused because of my involvement in allowing the case to go forward against Dr. Bobo
when 1 was U. S. Attorney. While I disagreed w'ith that position, the Court ultimately held that I
was precluded from representing the Governor in that particular matter.
The matters in Montgomery were a different matter, and during the summer of 2004, we
learned that a new team from the U.S. Attorney’s office was now in place to handle the
Siegelman investigation and for the first time the Government was calling us with a request to
discuss the case. There was also some sense of urgency because it was believed that the statute of
limitations was about to run on a matter involving Richard Scrushy and Healthsouth, an issue
which was being brought up for the first time.
In early July 2004, my partner. Jack Drake, and 1, along with another Siegelman attorney,
Bobby Segall, met with the prosecutors to discuss the case. Included in the meeting was John
Gibbs from the Attorney General’s office. Louis Franklin, the Criminal Chief in the U.S.
Attorney’s office who was now, after Ms. Weller left the office, the Acting U.S. Attorney in the
case, and Assistant U.S. Attorney Steve Feaga, an experienced white-collar prosecutor. Mr.
Feaga explained that he and Mr. Franklin had been assigned to the case a few months earlier and
that they had been working to get up to speed. He told us that they had “written off’ the matters
involving the motorcycle and the four-wheeler as just being too trivial to bring as federal charges
against a former governor. He advised that they had narrowed their focus to three areas: the
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appointment of Richard Serashy to the Alabama Certificate of Need Board (the "CON Board”)
and the $250,000 contribution to the Lottery Foundation; a tax change by the Siegelman
Revenue Department that favored a waste management company and who paid Lanny Young
$500,000 to get it done; and some disbursement of tobacco litigation money that went from
Governor Siegelman’ s former law firm to the Governor while he was in office. From our
standpoint, we know enough about the latter two areas to feel comfortable that nothing improper
or illegal had occurred and that witnesses would support that. Even the prosecutors expressed
skepticism about these two areas. From their perspective, however, the Scrushy case was a
different matter.
Mr. Feaga stated that the circumstantial evidence surrounding the contribution of
$250,000 to the Lottery Foundation and Mr. Scrushy’ s appointment to the CON board was
compelling evidence that a Hobbs Act violation, extortion under color of law, had been
committed. On the other hand, he also acknowledged that the defense to such a charge, both
legally and factually, was also compelling and that there were serious gaps in the evidence that
appeared to preclude bringing a charge. For instance; Richard Scrushy or someone from
Healthsouth had been appointed to the CON Board by the previous three governors and had a
presence on the Board since 1986; that like so many business leaders, Richard Serashy and
Healthsouth made significant political contributions hoping to have access to political leaders;
that even though Mr. Scrushy had contributed heavily to Governor Siegelman’ s opponent, who
in 1998 was the incumbent Governor. Healthsouth was one of the largest health care providers in
the state and country and that it was only natural for him to want to assist in an endeavor that
would gain favor with the new governor, the Education Lottery initiative. The biggest hurdles
for the Govemment, however, were the facts; the only way that they could prove a specific quid
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pro quo as required by the Hobbs Act, was through the testimony of a fonuer Siegelman aide,
Nick Bailey, who had already admitted to taking over a $100,000 worth of bribes from Lanny
Young. Mr. Bailey had told the investigators that Mr. Scrushy came to Montgomery in the
summer of 1999 and had a private meeting with Governor Siegelman. He said that immediately
following that meeting Governor Siegelman showed him the $250,000 check to the Lottery
Foundation and indicated that in exchange Mr. Scrushy wanted a seat on the CON Board. But
Mr. Bailey’s statement had a fatal flaw in that it was inconsistent with the documented, objective
evidence that the $250,000 check had not been issued until a week or so after the
Siegelman/Sciushy meeting. Mr. Bailey’s credibility was significantly damaged anyway with
his admissions of crimes with Lanny Young and cutting a deal with prosecutors for a lenient
sentence. This inconsistency was damning and it was clear that the prosecution knew it. They
had no evidence tliat tire Governor had even seen the check and no evidence about tire check’s
delivery from Healthsouth to Montgomery. They knew that the check had been “Fed-Exed” to
Healthsouth but no one knew how it got from there to Montgomery. No matter how compelling
the circumstantial evidence appeared to be, it was clear that Government prosecutors in
Montgomery were not comfortable bringing charges against a fornier governor where the
credibility of their star witness was so damaged, the witnesses’ statement was so inconsistent
with known facts and there were such gaping holes in the evidence.
We also discussed the fact that this investigation needed to come to a conclusion as soon
as possible. There was a concern from the prosecutors that the five year statute of limitations was
about to expire with regard to the appointment of Mr. Scrushy to the CON Board, which had
occurred in late July, 1999. The Government wanted more time to try and fill in the evidentiary
holes in the case and asked us if Governor Siegelman would sign a tolling agreement extending
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the statute of limitations for an additional 30 days. Because we were convinced from our
conversations that the other matters had either been written off and/or were such that we did not
believe any crime had occurred, we agreed to have the Governor sign the tolling agreement. We
firmly believed that additionai investigation wouid only help. Right or wrong, we left the
meeting convinced that the investigation in Montgomery would soon be coming to a close
without any charges being brought, leaving only the indictment in Birmingham to worry about.
As the 30 day period was about to expire I had telephone discussions with the Assistant
U.S. Attorneys. I can’t recall all of the specifics, but I know that we were asked to extend the
statute of limitations for another 30 day period. I responded that Govemor Siegelman would not
do that, that the investigation had dragged out long enough, that the evidence was not going to
get any better, that Nick Bailey’s credibility was not going to get any better and that it was time,
as we say down South, for the prosecution to fish or cut bait. I was told that despite earlier
concerns, the lawyers in Washington did not believe there was a statute of limitations problem,
but that in any event they would make a decision within the month. These conversations would
have been in early to mid-August, 2004. 1 remained convinced that the investigation was going
to come to a close.
A month came and went. I started to call the U.S. Attorney’s office, but could not get any
response. Two months, then three months went by with no substantive conversations with
prosecutors. However, in October of 2004, a day or two after the trial started in Birmingham, the
Government moved to dismiss all charges against Governor Siegelman after the Court made an
adverse evidentiary ruling. Although I did not think so at the time because of my prior
conversations with the prosecutors in Montgomery, the dismissal of the Birmingham case now
appears to have been a turning point in the Montgomery investigation
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It was just about a month later, in late November or December, 2004, that my partner and
I were able to have the first substantive conversation with prosecutors about the Montgomery
investigation since our meeting in Montgomery in July. It was on a phone call that Assistant
U.S. Attorney Feaga first apoiogized for not giving us a definitive answer any earlier as he toid
us he would do back in the summer. “But,” he said “we had a meeting in Washington and we
were told to go back and look at everything again from top to bottom.” My reaction to that
statement was mixed. On the one hand, in a case in which they would likely be criticized
regardless of the decision that was made, it would not have been unusual for the Public Integrity
Section to want to make sure that all of the “i’s” were dotted and all of the “t’s” were crossed.
On the other hand, I was concerned that having faded in Birmingham, the Government would
now re-double their efforts to bring charges against Governor Siegeiman in Montgomery.
Unfortunately, it was tliat fear that tliereafter came to pass.
What we saw beginning in early 2005 was much more than simply a top to bottom
review. Instead it was as if the investigation had new life from top to bottom and beyond.
Whereas in the past it had appeared that the investigation was being driven by investigators in
the Attorney General’s office, the FBI and the feds now seem to be taking control and they were
casting a wider net than ever before. The charges that we were told had been “written off’ were
obviously now back on the table and for the first time it appeared that agents were not
investigating any allegations of a crime, but were now fishing around for anything they could
find against an individual. New subpoenas were being issued for documents and witnesses.
Anyone that was a major financial backer of Don Siegeiman or who had done business with the
state during his administration began receiving visits by investigators and subpoenas by
prosecutors. Every bank record, every financial record, every investment record of the
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Governor, his wife, his campaign and his brother were being subpoenaed All of this was done
in a veiy public way. Every month there was a parade of new witnesses cailed to appear at the
grand jury in Montgomery, all in front of the ever-present eyes of the Alabama media who
chronicled each witness in every newspaper and every television station across the state.
With each passing month and grand jury session, it became more and more evident that
despite what we had been told earlier, the investigation was moving toward formal charges.
While my point of contact with prosecutors was with the U.S. Attorney’s office in Montgomery,
it was clear that the Public Integrity Section at the Department of Justice was playing a major
role in every decision being made. We were told specifically that Noel Hilman. the head of the
Public Integrity Section, was taking an active role in the investigation and that nothing would go
forward without his approval. In fact, as we continued to press for meetings in an attempt to
dissuade prosecutors from bringing charges, we were told that any meetings would have to take
place in Washington because Mr. Hiiman’s scheduie did not aiiow time for travei to
Montgomery. That summer, the summer of 2005, at least two meetings were heid in Washington,
DC at the Department of Justice. Because of a trial and other scheduling conflicts, 1 did not
attend either of those meetings. Quite frankly, it was my opinion that further discussions were a
waste of time given that the attitude of the prosecutors has changed direction 180° from the
previous summer. Some on our team, however, remained optimistic that the door was still open
for us to convince prosecutors to close the investigation without charges and we felt it our duty
to our client to keeping trying. So we pressed on with additional discussions in Montgomery as
late as September and October. What we didn’t know was that the die had been cast and a
decision made earlier in the spring to seek an indictment against Gov. Siegelman and Richard
Scrtishy, and that, in fact, a sealed indictment had already been returned. While 1 appreciate the
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dialogue and candor of our 2004 discussions, 1 do not believe that discussions that took place
over a series of months while sitting on a sealed indictment were in good faith. There is simpl}'
no way in my view that the Government would seek the dismissal of a sealed grand jury
indictment.
When a superseding indictment was finally returned and made public in October, 2005. it
simply confirmed that we had not only been wasting our time, but that it was clear that
prosecutors wanted to throw every conceivable charge against the Governor in hopes that
something would stick. Over 30 counts of racketeering, bribery, extortion and obstruction of
justice were included. It was a stunning tumaround from the attitude of the previous summer.
Because of a trial conflict in the spring of 2006, and the Governor’s insistence on a
speedy trial before June 2006 primary, I had no real choice hut to withdraw as lead counsel.
However, facing incredible challenges in sifting through mountains of discovery in a short period
of time. Gov. Siegelman was the heneficiary of exceptional legal talent lead hy attorneys Vince
Kilborn, David McDonald and Redding Pitt. But at the end of the day, despite acquittals on an
oveiwhelming number of the charges, matters involving Mr. Scrashy and one obstiuction of
justice count did stick, and Gov. Sigelman was convicted. As you are aware, following
sentencing, an appeal bond was denied and he was shackled and taken into custody from the
courtroom.
Recently allegations of improper influence hy the White House into decisions at the
Department of Justice have been front and center with this Committee and the public. In what
appears to he an effort to deflect attention away from Washington’s role in the decisions
regarding Gov. Siegelman, it has been widely reported in the media that the decision to seek an
indictment rested solely with the Acting U.S. Attorney in Montgomery. Those statements, Mr.
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Chairman, are totally contrary to my experience as a United States Attorney. The Public
Integrity Section acted more than in just an advisory capacity. They were an integrai part of this
effort. Moreover, the U.S. Attorney’s manual and Department of Justice guideiines give
supervisory power to Public Integrity in cases such as these.
Finally, Mr. Chairman, and meaning no disrespect to Mr. Franklin at aii, it is my opinion
that the Department of Justice wouid not, and should not, give soie decision making authority in
a high profile public corruption case to an “Acting” U.S. Attorney. Oversight in such a case is
critical and statements to the contraiy, as we have seen here, only highlight concerns that
partisan polities played a significant, if not dominant role, in how this investigation proceeded.
Mr. Chairman, many may take note of the fact that it was a jury that convicted Gov.
Siegeiman, not the Department of Justice, and suggest that the Department should devote
whatever resources to ferret out public corruption. Certainly investigating and prosecuting
pubiie corruption cases shouid be a top priority of any Administration. But prosecutors wieid
enormous power and the proper use of that power is fundamental to our system of justice.
Targeting individuals, rather than crimes, taints that entire process and gives investigators and
prosecutors an “ends justify the means” license to abuse tbe public’s trust. It turns the
presumption of innocence and due process of law upside down and calls into question the actuai
validity of any jury verdict. Remember Mr. Chairman that, white our jury system is the greatest
in the world, it is not infallible. Innocent people are often sent to prison and guilty people are
often set free. The issue of selective prosecution is important for the Committee’s consideration
because, as Dr, BGng stated: “Injustice anywhere is a threat to justice everywhere.”
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Mr. Scott. Thank you.
And I thank all of our witnesses for their testimonies. As has
been suggested, the full written statements in their entirety will be
entered into the record.
I would like to enter into the record a petition in support of urg-
ing the United States Congress to investigate the circumstances
surrounding the investigation, prosecution, sentencing and deten-
tion of Don Siegelman, the former governor of Alabama, that is
signed by 44 former state attorneys general urging the Congress to
take that action.
Without objection, that will be placed in the record.
[The information referred to follows:]
290
July 13, 2007
To; Honorable John Conyers, Jr.
Chairman, House Judiciary Connnittee
2426 Rayburn Building
Washington, DC 205 1 5
Honorable Patrick J. Leahy
Chairman, Senate Judiciary Coiiunittee
433 Russell Senate Office Building
United States Senate
Washington, DC 20510
Re: Petition in Support of Governor Siegelman
We hereby submit the enclosed petition signed by 44 former state attorneys generd
urging the United States Congress to investigate ffie circumstances surrounding the investigation,
prosecution, sentencing and detention of Don Siegelman, the former Governor of Alabama.
As Chairs of the Judiciary Committee of the House and Senate, we urge you to
incorporate the Siegelman case into your ongoing inquiry concerning potential inappropriate
political interference in the offices of United States Attorneys.
It is imperative to maintain the integrity of the justice system so as to ensure the public's
confidence in its objectivity and independence.
Sincerely yours,
/J^ffley A. Modisett
Robert Stephan
Robert Abrams Grant Woods
(J efirey Modisett signing for himself and for Robert Abrams, Robert Stephan and Grant Woods
with their permission)
644803, t
291
To the House & Senate Judiciary Committees:
We, the undersigned former state attorneys general - both Democrats and Republicans -
urge the U.S. Congress to investigate the circumstances surrounding the investigation,
prosecution, sentencing, and-detendon of Don Siegehnan, the former governor of Alabama.
As the former chief law enforcement officers for our respective states, we honor the rule of
law, the sanctity of juries, and the important deterrent effect of prosecution and - in most
cases - incarceration. We are also reticent to argue the fects of a case where we have not
had an opportunity to personally review each piece of evidence and its relationship to the
applicable law.
However, as numerous national and state media have pointed out, there is reason to believe
that the case brought against Governor Siegelman may have had sufficient irregulatities as to
call into question the basic fairness that is the linchpin of out system of justice. We urge the
Congress to take immediate action to investigate this entire matter so that the public may be
assured that the outcome is just.
While we do not know all of the facts of this case, we do know the following:
(1) Governor Siegelman is currently incarcerated at a Bureau of Prisons facility, having been
refused release on bail pending appeal. Indeed, he was even denied 45 days to report to
prison to give him time to put his affairs in order, an opportunity which is commonly
granted.
(2) A lawyer who had worked in the campaign of Governor Siegelman’s opponent in the
2006 gubernatorial contest has sworn in a recent affidavit that the spouse of the federal
292
prosecutor in this case stated that his -wife and another federal prosecutor would “take care
of’ Mr. Siegeknan and that he had talked with a political operative for the White House
concerning such assurances.
(3) In an unrelated but recent case, a low-level employee in another state administration was
prosecuted and convicted by another U.S. Attorney before a U.S. Court of Appeals ordered
her immediate release from prison and reversed the trial verdict calling the prosecution
evidence ‘beyond thin.”
(4) Another former Governor of Alabama was convicted of corruption charges a few ye^s
ago in a case where he personally benefited from his action and was sentenced to probation.
That case was handled by the same lead prosecutor as in the Siegelman case.
(5) The sentence sought by the prosecutor in Governor Siegelman’s case - 30 years - was
excessively disproportionate, and the sentence imposed — 7 years, 4 months -- was harsh.
(6) While we are not privy to all the evidence, we are aware that there are numerous
apparently legitimate (and ajg;uably compelling) appealable issues in this case, as confirmed
by a number of legal scholars. There have been allegations of jury misconduct and the
possible introduction of extrinsic evidence into the jury deliberation process that have not
been fuUy investigated. For this reason, and because Governor Siegelman is not in any way a
flight risk, the denial of a bond pending appeal appears inappropriate, and the shackling of
the Governor in handcuffe and leg irons as he was taken out of the courtroom was shocking.
293
The U.S. justice system should be above reproach. The only way to convince the public that
the Governor is not the victim of a politically motivated double-standard is for Congress to
investigate all aspects of the case thoroughly.
Jeffrey A. Modisett-Indiana
Robert T. Stephan-Kansas
Robert Abrams-New York
Grant Woods-Arizona
Ken Eikenberry-Washington
M. Jerome Diamond-Vermont
W.J. Michael Cody-Tennessee
Bonnie J. Campbell-Iowa
Neil F. Hartigan-Illinois
Larry EchoHawk-Idaho
Mike Moore-Mississippi
Scott Harshbarger-Massachusetts
Chris Gorman-Kentucky
Charles Oberly-Delaware
Andrew Ketterer-Maine
Dennis J. Roberts, II-Rhode Island
Joseph P. Mazurek-Montana
Michael Lilly-Hawaii
Mary Sue Terry- Virginia
Michael C. Turpen-Oklahoma
Robert J. Del Tufo-New Jersey
Richard leyoub-Louisiana
Richard Opper-Guam
Richard Wier-Delawaie
John K. Van de Kamp-Califbmia
Walter W. Cohen-Permsylvania
Frank J. Kelley-Michigan
Francis X. Bellotti-Massachusetts
Heidi Heitkamp-North Dakota
Hubert H. Humphrey, III-Minnesota
J. Knox Walkup-Tennessee
Frankie Sue Del Papa-Nevada
Oliver Koppell-New York
Bruce Botelho-Alaska
Andrew P. Miller-Virginia
Steve Clark-Arkansas
Anthony F. Troy-Virginia
Frank V. Mendocino- Wyoming
Robert H. Quinn-Massachusetts
C. William Ullrich-Guam
Duane Woodard-Colorado
Travis Medlock-South Carolina
Charles G. Brown-West Virginia
Edwin L. Pittman-Mississippi
294
Mr. Scott. Mr. Thornburgh, we cut your testimony off. Was
there more that you wanted to say. I think you were about to talk
about the FBI agent.
Mr. Thornburgh. If I could just take a minute to summarize my
testimony, it is set forth at length in my written statement, but one
troubling aspect of this investigation and prosecution and I think
further evidence that it was motivated by something other than a
search for justice relates to the conduct of FBI Agent Bradley
Orsini, the lead agent assigned to Dr. Wecht’s case, as well as the
case against the former mayor, and an agent with an unseemly
past.
Agent Orsini, while in Newark, New Jersey, was investigated for
years by the FBI’s Office of Professional Responsibility and found
to have falsified official records and FBI Form 302s. He was rep-
rimanded twice for falsification of evidence spanning years, de-
moted and suspended without pay for 30 days and placed on proba-
tion for a year before transferring to Pittsburgh in September 2004.
There are currently motions pending regarding Orsini’s actions
in connection with three highly publicized warrants he obtained in
this case, an admitted violation of Department of Justice policy.
Following disclosure of his past reprimands for serial falsification
of evidence, at the mandate of the Third Circuit Court of Appeals,
prosecutors told three different Federal courts that they do not
wish to sponsor Orsini as a witness and went so far as to attempt
to prevent us from even bringing up his role at trial. This, we sug-
gest, is further evidence of irregularities in the conduct of the in-
vestigation and prosecution of this case.
One final troubling incident, Mr. Chairman, at the news con-
ference announcing the indictment of Dr. Wecht, the United States
attorney touted the 84-count indictment against Dr. Wecht, but
then added that he had in her own words literally provided un-
claimed cadavers to a local Catholic university in exchange for lab
space, an allegation we will prove to be totally false and unfounded
at trial and which was never even discussed in the pre-indictment
meetings we had with Ms. Buchanan and her staff.
Predictably, Dr. Wecht, the Democrat scientist and educator, was
forthwith labeled a body snatcher and a media feeding frenzy en-
sued. The U.S. attorney thus succeeded in the department’s appar-
ent mission of casting Democrats in a negative light during the
election year.
This, it seems to me, as part of the cumulative record here, indi-
cates a failure and breakdown in the supervision of the conduct of
this investigation and prosecution, and we bring it to the Commit-
tee’s attention for that purpose.
Mr. Scott. Thank you.
When you were Attorney General under two different Presidents,
could you tell us about the number of people in the Department of
Justice that could communicate with numbers of people in the
White House and what implications that has in terms of limiting
the politicization of the Justice Department?
Mr. Thornburgh. Primary vehicle for communication between
the White House and the Department of Justice was communica-
tions between myself and the White House counsel who was then
C. Boy den Gray.
295
I made a rather strict rule about the department speaking with
one voice and, unless otherwise exempted in a particular case, that
voice to the Administration, to the news media and, indeed, to the
Congress was to be the Attorney General. Now, obviously, for prac-
tical reasons, that was not always the case, but any conduct with
the White House in particular would be subject to review by our
office.
Mr. Scott. And what implications did that have on politicization
of charging decisions?
Mr. Thornburgh. It was designed to have a prophylactic effect
to prevent anyone with designs upon affecting department inves-
tigations from attempting to contact people in the Department of
Justice. We had a couple of instances where we learned of that and
apprised the White House accordingly that that was not the way
that we intended to conduct the business of the Department of Jus-
tice.
Mr. Scott. Thank you. My time is about up.
I yield to the gentleman from Virginia.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Thornburgh, thank you for being here today. You have heard
so many people compliment you on your great record of public serv-
ice to this country, and we certainly thank you for that.
But taking your own words today, you said you are here today
as an advocate for Dr. Wecht, and I assume that your firm rep-
resents Dr. Wecht. I think that was your testimony.
Mr. Thornburgh. Yes, we do. Yes.
Mr. Forbes. And you do not represent him as a part of that pub-
lic service. You are representing him for compensation, your firm
is.
Mr. Thornburgh. Exactly.
Mr. Forbes. Isn’t that correct?
Mr. Thornburgh. We are engaged
Mr. Forbes. And you are paid for that?
Mr. Thornburgh. Exactly.
Mr. Forbes. Now you suggest that these charges should not have
been brought against Dr. Wecht. They were brought in a Federal
court, as I understand it. Is that correct?
Mr. Thornburgh. They were indeed.
Mr. Forbes. And did your firm file a motion to dismiss in that
matter?
Mr. Thornburgh. We did.
Mr. Forbes. And a Federal judge heard that case?
Mr. Thornburgh. Yes.
Mr. Forbes. He was not the prosecutor, was he?
Mr. Thornburgh. I am sorry?
Mr. Forbes. The Federal judge was not the prosecutor, was he?
Mr. Thornburgh. No.
Mr. Forbes. And he heard your written statements and he heard
whatever arguments you made and he denied your motion to dis-
miss. Is that correct?
Mr. Thornburgh. That is correct.
Mr. Forbes. So he basically disagreed with you that the charges
should not have been brought. In addition to that, this case is set
for trial in January. Is that correct?
296
Mr. Thornburgh. That is correct.
Mr. Forbes. The prosecutor could not very well come here today
and testify on any of the contrary facts that he might have because
if he did that, wouldn’t that be unethical for him, and wouldn’t that
certainly lead to the appearance of him politicizing this issue by
coming here and setting forth those claims in a forum like this?
Mr. Thornburgh. Under department rules, that is true, al-
though I understand that the United States attorney has testified
in secret to this Committee.
Mr. Forbes. Well, there is a difference between testifying per-
haps if you are required to testify somewhere else and between in
a public forum like this, isn’t it?
Mr. Thornburgh. Well, it is, indeed, but on occasion, when I
was Attorney General and when I was myself a U.S. attorney, tes-
timony was given to Committees of Congress who had a legitimate
oversight interest in particular matters
Mr. Forbes. Well
Mr. Thornburgh [continuing]. And that rule is not a hard-set
rule.
Mr. Forbes. So then you would suggest it would have been more
appropriate if the Democratic majority actually called her in to an-
swer questions to them? You would suggest that it would have
been better for the prosecutor to be able to come in a public hear-
ing like this before the case was tried in January to talk about the
case?
Mr. Thornburgh. I think in this instance where the Committee
has expressed such a high degree of interest in the circumstances
surrounding this prosecution, that might be appropriate. I do not
know what her testimony was. I am merely responding, at your re-
quest, at this Committee’s request
Mr. Forbes. Well, we have not finished
Mr. Thornburgh [continuing]. To present the point of view of a
person charged with a highly irregular pattern of crimes. We will
argue the case to the jury and defend this individual
Mr. Forbes. Mr. Thornburgh, my time — I do not have quite the
same privilege that you do. I will be cut to 5 minutes. So I am just
going to say I understand you will argue that case. I think that is
appropriate to do. I would just be very concerned if the attorney
trying this case came here and presented all these facts and dis-
cussed it today. I think that would be highly inappropriate for her,
and I think we end up not having that.
Mr. Shields, in your report — and let me just make sure I am cor-
rect here — by your own study, you put, “This is not a longitudinal
study.” I am sorry. “This longitudinal study is not a legal study.
It does not purport to track the actual case history of any indi-
vidual, other than as it may have been reported in the news story
or the Federal press release.” Is that true?
Mr. Shields. Yes, that is true.
Mr. Forbes. So you based yours on the press release?
Mr. Shields. Well, no, the Justice Department will not release
the data on cases. Mr. Congressman, as you well know, the Justice
Department will not release the data on the actual investigations
and
Mr. Forbes. In fact
297
Mr. Shields [continuing]. Who they are investigating, hut
Mr. Forbes. Mr. Shields, my time is about out, hut we just had
a hearing last week, and one of the witnesses came up and said,
“Thank you for at least pointing out that prosecutors oftentimes
cannot disclose all the information.” Oftentimes, the information is
not disclosed out of there, hut one of the things
Mr. Shields. Well, if they had not
Mr. Forbes. Mr. Shields, you can respond to anybody else. I do
not have much time. I have about 30 seconds.
Mr. Shields. Okay.
Mr. Forbes. But we had some investigations by the Justice De-
partment. You have Robert Nell. You got Jack Abramoff. You got
David Safavian . You got Neal Volz. You got Tony Rudy. You got
Roger Stillwell. And we hear a lot of people come in and say, “Look
at all this corruption by the Republicans,” and I am sure some of
them felt that that was improper and wrong, too.
Mr. Jones, I do not have much time to ask you any questions,
but I know that when the initial allegation against Governor
Siegelman were brought up, you were the U.S. attorney at that
time — is that correct — or at some point in time when those allega-
tions —
Mr. Jones. In the Bobo investigation, they were never brought
up. What I said in my statement was an assistant attorney general
for the state hoped they were going to go that far. It never came
up. So
Mr. Forbes. But you subsequently testified you are a longtime
friend of Governor Siegelman’s, right?
Mr. Jones. Oh, yes. Yes.
Mr. Forbes. And at one point in time, you were trying a case,
and did the court ask you to stop?
Mr. Jones. Well, after the Bobo case was reversed and came
back and Governor Siegelman was, in my opinion, shockingly in-
cluded in that, I sought to continue to represent him. I was his
lawyer at that time, but because I had initially agreed that the
early Bobo case that did not include Siegelman come to my district.
Judge Clemens felt that that would not be appropriate for me to
represent him.
Mr. Forbes. So you disagreed with him, but the judge told you
that you could not represent him in that case?
Mr. Jones. Yes.
Mr. Forbes. And also you have given significant campaign con-
tributions to Federal candidates across the country. Democrats, in-
cluding Members on this Committee, correct?
Mr. Jones. Yes, sir.
Mr. Forbes. Okay.
Mr. Chairman, thank you for your patience. My time has ex-
pired.
Mr. Scott. Thank you.
The gentlelady from California?
Ms. Sanchez. Thank you.
Mr. Thornburgh, you served as the U.S. attorney for the Western
District of Pennsylvania, the very district in which Dr. Wecht is
charged with corruption. Is that correct?
Mr. Thornburgh. That is correct.
298
Ms. Sanchez. Okay. In your testimony, you mentioned that his
indictment is not one which normally constitutes a corruption case.
What would a normal corruption case resemble, and is there a
threshold of activity that you looked for when you were the U.S.
attorney in bringing those types of charges?
Mr. Thornburgh. The normal type of corruption, in my view, is
where there is a bribery case, an extortion case, a conflict of inter-
est that gives rise to some financial gain for an officeholder, as dis-
tinguished from a series of minor irregularities that are apparent
in this case that under a broad reading of the Federal mail fraud
and theft of services statutes have attempted to be converted into
Federal felonies, and that is what brought my attention to this case
and these aspects I have discussed this morning.
Ms. Sanchez. So, in your opinion, the case that is brought
against Dr. Wecht is not the typical kind of corruption case that
you hear about in the news headlines about
Mr. Thornburgh. Absolutely.
Ms. Sanchez [continuing]. People taking bribes, quid pro quos or
favors or those types of things?
Mr. Thornburgh. Absolutely. They all relate, I might add, to the
conduct of his outside business, a practice that is expressly con-
doned by the authority under which he holds office. There is noth-
ing sinister about him holding public office and doing the outside
business, and
Ms. Sanchez. In fact, that outside business sometimes helped
prosecutors in some of the counties?
Mr. Thornburgh. In large part, he was engaged by prosecutors
in outlying counties, more rural counties where they did not have
the forensic pathology capability available, and he did that not only
in Pennsylvania, but across the Nation and, in fact, in major high-
profile cases because of the wide respect that he has attained.
Ms. Sanchez. I am interested in getting at the particulars of this
case. I have read your written testimony, and you indicated that
the U.S. attorney’s office in the Western District of Pennsylvania
has taken an overly expansive view of Federal criminal jurisdiction
to effectively transform common events in the public workplace into
Federal felonies, and one of the examples, if you could just refresh
my memory, involved faxes and a total net worth of about — the
number of $24 sticks in my mind.
Mr. Thornburgh. Well, I do not know what the exact amount
befixed on the use of a fax machine, but, in point of fact, a number
of the counts in this indictment relate to Dr. Wecht’s alleged use
of a county fax machine to send his curriculum vitae or to send his
fee schedules or to send reports to some of those agencies for which
he had done outside work or to other sources that had requested
him to speak. He is widely known as a speaker on these issues.
And each one of those illicit, supposedly, uses of the fax machine
is charged as a felony in this indictment. It does not make any
sense.
Ms. Sanchez. I would agree with you. I think that most people
occasionally use a fax machine in their office to conduct stuff that
perhaps is not directly related to their work, but
Mr. Thornburgh. It is probably not ethical, but hardly a Federal
felony.
299
Ms. Sanchez. A Federal felony. How would you suggest that
Congress change the law so that public corruption cases are based
on evidence of criminal activity rather than ordinary types of
events in the public workplace?
Mr. Thornburgh. I think a review of the type suggested by
Judge Easterbrook and cited in my written statement would be in
order of these statutes that are so loose in their potential applica-
tion, notably section 666 and 1346, which he said have an open-
ended quality to them that permits prosecutors to kind of define
the crime themselves. I think the Congress ought, in its oversight
function, to examine precisely how those statutes have been inter-
preted and to tighten them up, and
Ms. Sanchez. So that we are not charging people with Federal
felonies for taking pencils home from their workplace?
Mr. Thornburgh. Exactly. Exactly.
Ms. Sanchez. In your written testimony, you also indicate that
the public’s perception of apparent politics at the Department of
Justice will not be easily changed or remedied. I am interested in
knowing what steps could the Attorney General take to change the
public perception that improper political considerations are being
injected into prosecutorial decision-making at the Department of
Justice.
Mr. Thornburgh. I think an important step has already been
taken in that regard with the appointment, subject to Senate con-
firmation, of Judge Michael McCasey, a widely respected jurist who
has experience in the Department of Justice and who, as noted
here today, at his hearing testified that partisan politics should
play no part in either bringing of charges or the timing of charges,
and the timing is important as well, as we pointed out in our state-
ment, that these cases were all brought against Democrats in the
run-up to the 2006 election.
But Judge McCasey has clearly indicated his concern over these
allegations, over the image of the department, over the integrity
and reputation of the department, and I think he will ask for and
deserves the support of your Committee and its counterparts in the
other House.
Ms. Sanchez. Thank you, Mr. Thornburgh.
I yield back the balance of my time.
Mr. Scott. Thank you.
The gentleman from Florida, Mr. Keller?
Mr. Keller. Well, thank you very much, Mr. Chairman.
Mr. Thornburgh, I do not know if Dr. Wecht is guilty or not. I
do know that the Federal judge will ensure that the trial is con-
ducted based on witnesses with personal knowledge, documents
which are authenticated and admissible evidence.
Your testimony is that there is a perception of an appearance
that Dr. Wecht may have been prosecuted for being a Democrat be-
cause the prosecutor might be trying to please the White House,
possibly to advance her own career. Your testimony, to be blunt, is
the most pathetic example of speculation and innuendo and hear-
say that I have seen in 7 years on this Committee.
I think it is totally ridiculous to imply that the President of the
United States would call up a United States attorney and say,
“Why don’t you go find some local Democrat elected official, pref-
300
erably a dog catcher or coroner, and prosecute the hell out of them
to help us keep the U.S. Congress in Republican hands?” It is so
farfetched, I am almost embarrassed to be an attorney listening to
it.
And you go so far as to buttress your unsupported assertions by
quoting a local opinion columnist who then speculates that “U.S.
Attorney Mary Beth Buchanan might well consider Dr. Wecht a
plum target, good for many brownie points at the White House.” I
think it is fair to say that is a pretty tenuous argument for ques-
tioning the honor and integrity of a United States attorney.
So let me get back to some of the real evidence issues here and
ask you do you, sir, have any personal knowledge of any conversa-
tions between U.S. Attorney Buchanan and the President in which
it was discussed that Dr. Wecht should be prosecuted because he
is a Democrat?
Mr. Thornburgh. I would be mortally embarrassed if I had come
before this Committee and made a charge that the President of the
United States had had conversations with U.S. Attorney Buchanan.
Mr. Keller. I will take that as a no.
Mr. Thornburgh [continuing]. For such statements, and you
should be cited for misciting the record.
Mr. Keller. Well, it is right there. I am quoting your statement.
Mr. Thornburgh. I did not ever say that the President of the
United States had any discussions with Ms. Buchanan.
Mr. Keller. Do you have any personal knowledge of any con-
versation between any White House officials and the U.S. Attorney
Buchanan in which it was discussed that Dr. Wecht should be pros-
ecuted for being Democrat?
Mr. Thornburgh. Ms. Buchanan’s testimony to this Committee
was given in secret, and I have no access to that, so I cannot an-
swer that.
Mr. Keller. You have no such personal knowledge, do you?
Mr. Thornburgh. Not at this point.
Mr. Keller. Do you have any personal knowledge of any con-
versation between any Department of Justice official and U.S. At-
torney Buchanan in which it was discussed that Dr. Wecht should
be prosecuted because he is a Democrat?
Mr. Thornburgh. No, I might remind the Member that the De-
partment of Justice has refused to make any of this information
available to this Committee.
Mr. Keller. You do not have any personal knowledge
Mr. Davis. Mr. Chairman, point of order.
Mr. Keller. I would like my question answered.
Mr. Davis. Point of order, Mr. Chairman. May the former Attor-
ney General of the United States be allowed to finish his answer?
Mr. Keller. I can reclaim my time anytime I like.
Mr. Scott. The Committee will come to order.
Mr. Keller. Yes.
Mr. Scott. The gentleman will proceed. We would appreciate it
if you would, if you are going to ask a question, give him an oppor-
tunity to respond.
Mr. Keller. I would like an answer. Do you have any personal
knowledge of any conversation between U.S. Attorney Buchanan
301
and any Department of Justice official whence it was discussed
that Dr. Wecht should he prosecuted because he is a Democrat?
Mr. Thornburgh. Obviously not.
Mr. Keller. Do you have any personal knowledge of any con-
versation between U.S. Attorney Buchanan and anyone on this
planet in which it was discussed that Dr. Wecht should be pros-
ecuted because he is a Democrat?
Mr. Thornburgh. Obviously not, since I have no access to the
public record created by her testimony.
Mr. Keller. Have you seen any letter or other document be-
tween the U.S. attorney and any person on this planet in which it
was discussed by U.S. Attorney Buchanan that she was pursuing
Dr. Wecht because of his political affiliation as a Democrat?
Mr. Thornburgh. What we have done is respond to this Com-
mittee’s request in your investigation of allegations of political in-
fluence with a set of facts that raise real questions about why this
prosecution was initiated in the first place. We do not have access,
as you do or as other authorities might have, to the record that
would seek to verify those facts, but we have raised these ques-
tions, and we think that is a legitimate role for the Congress to
play in its oversight function.
Mr. Keller. Mr. Attorney General, you have not seen any letter
or other document?
Mr. Thornburgh. No, of course not.
Mr. Keller. Okay. You have made the factual assertion that the
Department of Justice demonstrated that if you play by its rules,
you will advance. Can you give me the U.S. attorney whose career
has advanced solely because he or she prosecuted Democrats?
Mr. Thornburgh. Those were disclosures made in the course of
the investigation being carried on into political influence within the
department.
Mr. Keller. Do you have the name of any U.S. attorney who
Mr. Thornburgh. Have I spoken with him personally?
Mr. Keller. The name?
Mr. Thornburgh. I relied on news accounts and other authori-
ties that
Mr. Keller. Tell me the name of the U.S. attorney who was pro-
moted, advanced, according to what you said, because he or she
prosecuted a Democrat?
Mr. Thornburgh. I cannot give you that information specifically
now.
Mr. Keller. Mr. Chairman, my time has expired.
Mr. Cannon. Mr. Chairman, may I inquire about just a matter
of order in the Committee? We have had a couple of times when
Republicans have been questioning witnesses, not just in this Com-
mittee, since we actually have not met as a joint Committee before,
but in the full Committee. I think Mr. Davis made a point on a cou-
ple of occasions that the Member should let a witness answer.
There is no rule, I believe, that requires that a witness should
answer. We have the right to inquire, I believe, and if we are a lit-
tle coarse with a witness, I think that is appropriate, because
sometimes we have witnesses that are a little bit not forthcoming,
so I think it would be
Mr. Davis. Mr. Chairman, if I might respond?
302
Mr. Cannon. Well, pardon me. I
Mr. Scott. The Committee will
Mr. Davis. My name was invoked.
Mr. Cannon. May I just finish by saying that if the Chair would
please make it clear that it is the gentleman’s time or the
gentlelady’s time who is making the inquiry, I would appreciate
that.
Mr. Scott. The Committee will come to order.
And we would appreciate, just as a matter of courtesy, that if you
ask the witness a question that the witness be allowed to answer.
Depending on who the witnesses are, it goes both ways, but we will
try to be courteous to the witnesses the best we can.
Mr. Keller. Mr. Chairman, if I can just interject, if I am asking
a witness a question, I am not required to sit here and listen to
5 minutes of nonresponsive sentences under any scenario
Mr. Scott. Well, the gentleman was given
Mr. Keller [continuing]. And I will not.
Mr. Scott. All of the
Mr. Forbes. Mr. Chairman, can I ask for some courtesy for the
former Attorney General of the United States?
Mr. Scott. The Committee will come to order.
The opinions have been expressed, and we will move on to the
next person who is the gentleman from Michigan, Chairman of the
full Committee.
Mr. Conyers. Thank you. I thank you for keeping us in order
and lowering the emotional level that was beginning to rise here.
You are a great Chairman.
Now I want to help the gentleman from Florida out. I have the
name of a case he may want to inquire when he was asking of Gen-
eral Thornburgh. If you will examine the case involving U.S. Attor-
ney Steven Biskupic, who was on the list to be fired and, after he
indicted Georgia Thompson, his name was restored. His name was
taken off the list. So he did not get a promotion, but he did keep
his job.
And so what I would like to do now is to ask Attorney General
Thornburgh if he wanted to make any further elaboration, as eager
as I am to move on, to the questions that were put to him by my
friend from Florida?
Mr. Thornburgh. No, Mr. Chairman. I think the distinction that
I am trying to make is that we are engaged by our client to protect
his rights and will vigorously defend him in the criminal trial set
for January.
Mr. Conyers. Thank you.
Mr. Thornburgh. There is a separate role, however, as the Com-
mittee clearly recognizes in the calling of this hearing, the over-
sight role that this Committee has over the conduct of the Depart-
ment of Justice and an examination whether allegations of political
influence have been present in these cases, and it is for that reason
that we appear today and set forth the testimony that we did.
Excuse me for interrupting you, Mr. Chairman.
Mr. Conyers. No, that is quite all right.
As a matter of fact, the hearing is cautiously entitled Allegations
of Selective Prosecution. I commend the two Chairs for their discre-
tion in titling the hearing.
303
But we started off earlier in the year with the politicization of
the Department of Justice. These hearings follow along to allega-
tions of prosecutorial abuse. That is a very direct connected line.
This is not some off-the-wall hearing. This directly follows the work
of both these Subcommittees that we have gone along.
Now somehow this former U.S. attorney from Alabama has per-
suaded me to give him a minute of my time, so when I get to 4
minutes, would somebody please advise me so I can recognize him?
The yellow light will come on.
Okay. Thanks, Mel Watt. I will remember this.
Before the yellow light comes on, I want to put in here every-
thing I have said has been beyond controversy, and I just want to
start off with the statement of the prosecutor from Louisiana to
show you how far prosecutors have gotten out of line.
He infamously stated to a room full of schoolchildren, “I can ruin
your life with the stroke of a pen.” Can you imagine a state pros-
ecutor talking to a group of schoolchildren like that?
And then I have for the record, just for those of you who may
not remember it, when Attorney General Gonzales spoke before
U.S. attorneys, he said, “I work for the White House, and you work
for the White House,” and as a matter of fact, it cost one U.S. at-
torney his job, if our investigation was correct.
And then there is Monica — oh, the light went on. Okay, there is
Monica Goodling who was nervously called into the White House
by then Attorney General Gonzales, and she was interviewed about
her steadfastness in her position as liaison to the White House, and
she admitted sitting right in the chair that Donald Fields is in
that, “Yes, I did cross the line a number of times in my job.”
And I yield now to my friend from Alabama, Artur Davis.
Mr. Davis. Thank you, Mr. Chairman.
I want to make one quick point before too much time goes for-
ward in the hearing.
And I thank the Chair for yielding.
The very able Ranking Member is a good friend of mine, Mr.
Forbes. I was surprised by an assertion that he made during his
opening statement regarding Jill Simpson, one of the witnesses in
the Siegelman case. My friend, Mr. Forbes, at one point suggested
that Ms. Simpson’s testimony had been conclusively debunked, as
he put it, and he amazed me by somehow suggesting that the Com-
mittee should refer her for prosecution.
One point that I hope my friend from Virginia will take note of —
and I would ask unanimous consent to introduce Exhibit 4 to the
Simpson deposition into the record. Exhibit 4 to the Simpson depo-
sition is a list of wireless phone calls made from her phone — if you
examine the phone list, on November 18, 2002, the date that she
contends that she made a phone call to Rob Riley and others, there
is a number listed, 205-870-9866, 11/18, duration for 11 minutes.
All three affidavits submitted from Mr. Butts, Mr. Lembke and
Mr. Riley deny that there was a conference call that occurred on
November 18.
I ask to also introduce into the record a search for law firms in
Alabama on NetOpus.net. Enter the law firm name Riley Jackson.
The following phone number comes up, 205-870-9866
Mr. Scott. The gentleman’s time
304
Mr. Davis [continuing]. The exact same phone number that sur-
faces in Exhibit 4.
Mr. Forbes, in light of that revelation that these three affidavits
are contradicted by the phone record, I ask you to withdraw your
statement, sir, regarding possible perjury by Ms. Simpson.
Mr. Scott. Is the gentleman asking unanimous consent to put
these into the record?
Mr. Davis. Yes.
Mr. Scott. Without objection.
[The information referred to follows:]
affidavit
Comes now the undersigned Affiant and, after having been duly sworn, states on oath to the
best of my recollection, infoniiation, and belief, the following statements set forth in pai'agi'aphs one
through six are true and coirect:
My name is Robert R, Riley Jr. I am an attorney practicing law in Birmingham, Alabama at
the law firmof Riley (& Jackson, P.C. I graduated from the Univereity of Alabama in 1988 with a
degree in Economics, Yale Law School in 1 991 , with a J.D. degree, and the University of Cambridge
(England) in 1992, with a LL.M, degree. My father, Bob Riley, was elected Governor of Alabama
in November, 2002 and was re-elected Governor in November, 2006,
I haveno memoiy ofbeing on aphonecall with Jill Simpson (“Ms. Simpson”) on November
18, 2002. Furthemiore, I do not believe a phone call occurred that involved Ms, Simpson, former
Alabama Supreme Court Justice Terry Butts (“Mr. Butts”), Bill Canary (“Mr, Canary”), and myself
on November 18, 2002 in which Mr. Butts allegedly slated that he would confront former Alabama
Governor Don Siegelman (“Mr. Siegehnan”) with photographs of apolitical prank, described in the
following paragraph, and would attempt to convince Mr. Siegelman to concede the election based
on said photographs, or that Mr. Canary allegedly made statements to tire effect tliat “his girls” would
lake care of Mr, Siegelman, or that “Karl” had spoken to, or gone over to, the Department of Justice
and that the Department of Justice was pursuing, or would pursue, a case against Mr. Siegelman.
I have never been told by Mr. Butts, or anyone else, that Mr. Butts spoke with Mr. Siegelman
on November 1 8, 2002, and convinced Mr. Siegelman to concede the 2002 campaign for Governor.
Other than from Ms. Simpson’s Affidavit, I have never heard anyone say that Mr. Siegelman
conceded the election in exchange for not releasing photographs of a political prank involving
Democratic operatives putting up Riley for Governor signs at a KKK rally. Other than in Ms.
305
Simpson’s testimony of September 1 4, 2007, I have never heard that Mr. Siegelman conceded the
election in exchange for immunity from prosecution. I have never made a statement to Ms. Simpson
that there was an agreement between Mr. Butts and Mr. Siegelman regarding Mr, Siegelman’s
concession of the 2002 campaign for Governor.
I do not believe that I have ever met or spoken with Judge Mark Fuller (“Judge Fuller").
Other than what I have read in Ms. Simpson’s testimony and the documents that I understand she
produced at the time of her testimony, I have no knowledge of any ownership in any business or
alleged grudges Ms. Simpson says Judge Fuller holds against Mr. Siegelman, and I never discussed
such with Ms. Simpson. I have spoken with Stewart Hall (“Mr. Hall”) since Ms. Simpson’s
testimony was released. Mr. Hall has told me that, to the best of his recollection, he has never met
or spoken with Judge Fuller at any time in his life, nor does he have knowledge of any businesses
in which Judge Fuller has been involved or any alleged grudge that Judge Fuller has against Mr.
Siegelman. Ms. Simpson stated in her testimony that she understood that Judge Fuller was in
“college” at “Alabama” with Stewart and me. It is my understanding based on an internet search that
Judge Fuller graduated from college at the University of Alabama in 1982. I began college at the
University of Alabama in 1984. Mr. Hall has told me that he began college at the University of
Alabama in January, 1985.
I have never requested Karl Rove’s (“Mr. Rove”) assistance to “speed up” checks for any of
Ms. Simpson’s clients, or his assistance on any other federal matter, nor have I ever told Ms.
Simpson that I was doing so. Ms. Simpson’s belief that I e-mailed a copy of a document to Mr.
Rove regarding a matter associated with a FEMA appeal is not correct. The document that Ms.
Simpson has discussed in her testimony was sent to Mr. Karl Dix, who is an attorney in Atlanta,
2
306
Georgia, practicing with the law finn of Smitli, Currie, and Hancock, who provided assistance with
the appeal. Furthermore, I did not tell Ms. Simpson that Mr. Rove was assisting with this project.
I have not been told or provided information that Mr. Siegelman would be prosecuted if he
ran for political office again after the 2002 election; tliat Mr. Rove had spoken to someone about
prosecuting Mr. Siegelman; that Judge Fuller was going to be appointed tlie Judge ofthe Siegelman-
Scrushy case; that a case would be brouglit against Mr. Siegelman and Mr. Scritshy or that specific
charges were going to be brought against them; nor have I made statements to this effect to Ms.
Simpson. Furthemiore, at no time have 1 participated, in any manner or way, in the criminal
prosecutions of Mr. Siegelman or Mr. Scrushy.
In Jefferson County, Alabama, on the Z/r~^ day of October, 2007, before me, a Notary
Public in and for tire above-state and county, personally appeared Robert R. Riley, Jr., known to me
or proved to be the person named in and who executed the foregoing inslrament, and being first duly
sworn, such person acknowledged that he or she executed said instrument for the purposes therein
contained as his of her free and voluntary act and deed.
Notary Public
My commission expires; UA jc L\ |U
3
307
TERRY LUCAS BUTTS
ALABAMA SUPREME COURT JUSTICE (RET.)
ATTORNEY AT LAW
Mailing Addtsas 76 South Gienwood Avenue Telephone: {334) 335-2262
P.O. Drawer 272 Luveme, Alabama 36049
Luveme, Alabama 36049 Facsimjle: (334) 335-2214
Email: tlucasbLitts@yahoo.com
STATEMENT OF TERKY LUCAS BUTTS
My name is Teny Lucas Butts. I received my law degree in 1968 from the University of
Alabama Law School. Following law school, 1 practiced law in Elba, Alabania, for eight years. I
then became a Circuit Court Judge, ultimately serving some 23 ‘A years as a judge, before rctmng
from the Alabama Supreme Court in 1998 to run as the Democratic nominee for Attorney
General of Alabama against then apiminted incumbent Attorney General Bill Pryor. After losing
the 1998 race to Attorney General Pryor by three-tenths of one percent, I returned to the active
practice of law, practicing in Troy, Alabania, in ultinrately an eight person law firm. I left this
firm and practice in 2005, letuming to my home town of Luveme, Alabama, where I resided, to
open my separate law practice, ydiicb continues today.
Since leaving the judicial bench, among my clients have been Governor Bob Riley, Former
Alabama Chief Justice Roy Moore, and Former CEO of HealtbSouth Corporation, Richard
Scrushy, in respective matters.
After the November 2002 general election in Alabama, then challenger Bob Riley prevailed over
then incumbent Governor Don SiegeUuan by some 3,1 00 votes. Govetitor Siegelman
immediatdy began a legal challenge to obtain a recotint of the votes. Along with Attorney Mall
Lemblce of the firm Bradley/Arant in Binningham, I was employed by Govemor-dect Bob Riley
to resist the recount challenge.
For nearly two weeks, co-counsel Matt Lembke and I (along with other attorneys who assisted
locally in varions counties, but those attorneys did not include Dana JtH Simpson) “punched and
counter-punched” ait over the State, with Governor Siegelman’s attorneys Joe Espy and Bobby
Segall, both of Montgomery, and “Boots” Gale of Birmingham, as to Governor Siegelman’s
efforts to obtain vote recounts and our efforts to block any recounts.
t lake up Mrs. Simpson’s allegations involving me as follows:
1 . Ms, Simpson alleges a confensnee call occurring on November 1 S, 2002. As f recall that
day. Attorney Matt Lembke and I arrived within minutes of each other at approximately
9:00 am, at Rob Riley’s law office in Birmingham. Rob Riley’s office had come to be
headquarters for the election recount challeriges.
On November 18, 2002, Matt and I spent the entire morning working togelher with Rub
Riley in Rob’s law office. As I recsdl, sometime in thcaflcrnoon, Tob)- Roth (1 bclio rc)
stuck his head iii where we were all working, advttdng t.hat a or. I' Jt.:rt hr.r'*.
308
&om someone in Governor Siegelman’s campaign inquiring as to when Governor
Siegelman could speak by phone with Governor Riley.
Durimi the afternoon Matt and I were in Rob Riley’s law office with Governor Riley.
Rob Mev Steve Windora, Toby Roth, and others standing in the doorway ^n Ma
^tlTuni chlfby Governor Riley and w^tedwithhimfo^
^^medmelt^afler, mile I could notbe^ Governor Siegel’s end ofteer^l, I
r^nld hear Governor Riley’s. The two men had a very amicable and fiiendly
comLsation. When Governor Riley hung up the phone, he stood up Matt ^
^^d Governor Riley put an arm around each of us. hugging us to him. and said.^e
^ngte^rkob ffitey hadacamerarmd snapped aphoto, 'niem were then hugs and
i...,.rt»haVps all around and that was the end of it.
Later after Governor Siegelman conceded publicly, we aU rode wift Gwernor Ril^ to
I ««dl we were all exhausted because there had been some of
around the clock working on the various pending lawsuits and
do not believe not do 1 recall, any conference caU occumng with Ms. Simpson. In tact,
S^e2rrlcountcont;ovLsy.MattI^hkeandI^^^^^
the issues, including conference calls, unless we did it together
oonsultation/concurrence by both of us on any matter, as
Further, on November 1 8, 2002, Matt and I were never outside of each other presence
for any length of time for any phone conferences.
2 AS to Ms. Simpson’s allegations about concern over a Ku Klux KJan ^y “’'^8
‘ ^paign sign^ of Governor Riley, I simply do not know -l^befo^
good S^em “damn" or a “hoot-in-heU’’ about what the KKK thinks, either before,
d^g, or after an election on any issue. Certainly this would be pafficnlariy true as to
the placing of anyone’s campmgn signs at aXlan rally an election.
3 As to Ms Simpson’s aUegarions concerning roe approaclring wther Governor Siegelman
^ soiTof to “Campaign people’’ about Governor Siegelman conceding the elation ^d
in return the KKK a^gations. as well as that any Federal invcstigation/prosecution would
end, that simply did not happen,
1 could not ethically {and did not) approach another attom^s client (m this mstancc
GowmmSiegeMnordidlcoritaetanyofGovernor Siege’s W
Adffitionally, I would have no authority to prevent, stop, or ^ any ^
investigation/proseculion of anyone. TTiatkind of authon^ toves o^y from State or
FedetdAttor^ey Generals. Slate District Attorneys. Umted Smes
United States’ Justice Department, none of whom was I m ront^ wfo concerning any
investigation/prosecution of Governor Siegelman as alleged b>' Ms. Simpson.
4 Along with other co-counsel. I did help represent former He^*Soufo CEO Rtel^
Sciushy in the Middle District Federal Court of Alabama m 2006, ^ about
Govenmr Don Siegelman was a co-defendant. WMle there is much that can he said about
2
309
(hat trial, I continue to believe that both Richard Scmshy and Don Siegelman were
erroneously convicted and that their respective convictions should be reversed on appeal
for many trial errors. However, I did not (as Ms. Simpson alleges) “go back and tell the
Governor things” about Mr. Scrushy’s case. Neither did I discuss Mr. Scrushy’s case
with Rob Riley. Again, these allegations by Ms. Simpson did not happen.
Additionally, there is just simply no conflict of interest on my part in having t« 5 )fesented
Mr. Sorushy, as Ms. Simpson’s allegatKMis on that issue are not true. In fact, the first
time 1 ever heard of Ms. Simpson and/or her allegalions was in May 2007 when I received
media calls about her allegations.
5. Finally, among other general matters that I recall on November 1 8, 2002, co-counsel Matt
Lembke, Rob Riley, and I were together in Rob’s office on the mentioned date. As I
recall, none of us were ever outside each other’ s presence on that day for any length of
time, so if a conference call with Ms. Simpson occurred as she alleges, I am confident we
would remember it, particularly, in li^l of the commems she alleges. Again, 1 neither
recall any such call, nor do I believe any such call/conversation as alleged ever took
place.
Further, Bill Canary was not present with us on November 18, 2002, nor do I ever recall
any conference call with him. In fact, to my knowledge and recall, I have never had a
phone call with Mr. Canary.
Reiterating, the allegations made by Ms. Simpson involving me are simply not true.
While Ms. Simpson herself may not personally be in doubt, however, with no disrespect
intended, I certainly believe her to be in error.
Tefiy Lucas’feilts
SWORN TO and subscribed before me this
day of October, 2007.
NotaryFublic A
I MyCotlB.Exp. I
My Commission Expires: s
3
310
STATE OF ALABAMA )
JEFFERSON COUNTY )
AFFIDAVIT OF MATTHEW H. LEMBKE
My name is Matthew H. Lembke. I am a partner in the Birmingham, Alabama
office of Bradley Arant Rose & White LLP. 1 received my law degree from the
University of Virginia School of Law in 1991. Following law school, 1 clerked for Judge
J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit and
for Justice Anthony M. Kennedy on the Supreme Court of the United States. I joined
Bradley Arant in 1993 and have practiced at the firm continuously since then,
In the fall of 2002, 1 served as counsel to the Riley for Governor campaign. The
results of the 2002 Alabama gubernatorial election were very close. Bob Riley, then a
congressman, won by approximately 3,000 votes over Governor Don Siegelman. 1
understand it to have been the closest gubernatorial election in Alabama history.
Due to tire closeness of the election. Governor Siegelman initially refused to
concede and asked for a recount of the ballots. What ensued was a legal controversy
involving numerous state courts that extended over a 13 -day period until Governor
Siegelman conceded on Monday, November 18, 2002.
In my role as campaign counsel, I led the Riley campaign’s efforts in that post-
election legal controversy. Within a day or two of the election, the campaign also
retained former Alabama Supreme Court Justice Terry Butts, who had been the
Democratic nominee for Alabama Attorney General in 1998, to join me in leading the
legal effort. From the time that Justice Butts joined the effort on or about November 7,
311
2002, until Governor Siegelman’s concession, Justice Butts and I worked closely together
on all the legal issues.
I have reviewed the affidavit executed by Jill Simpson with regard to certain
alleged events occurring on November 1 8, 2002. 1 have also reviewed Ms. Simpson’s
testimony to representatives of the House Judiciary Committee on September 14, 2007.
I arrived at Rob Riley’s law office around 9:00 a.m. on November 18, 2002.
Justice Butts and I were physically located in Rob Riley’s personal office during most of
the day. Rob’s personal office is a large room with a desk at one end and a sofa and
conference table at the other end. Rob was also present in that office throughout the day.
Justice Butts, Rob, and I worked on various legal issues throughout the morning and into
the early afternoon.
In the early afternoon of November 1 8, we learned from Governor-elect Riley’s
campaign manager, Toby Roth, that a representative of Governor Siegelman had called to
determine where Governor Siegelman could call Governor-elect Riley late that afternoon.
For the next few hours, we sat in Rob’s office waiting to see if the Siegelman call would
take place.
Late that afternoon. Governor Siegelman placed the call to Governor-elect Riley
and stated that he was conceding the election. Along with Justice Butts, Rob Riley, Toby
Roth, and others, I listened to Governor-elect Riley’s end of the conversation. When the
call ended, the room erupted in celebration, and all of us left shortly thereafter to
accompany Governor-elect Riley to the location where he made his victory speech.
I do not recall the phone call that Ms. Simpson claims took place between her,
Justice Butts, Bill Canary, and Rob Riley at 10:52 am on November 1 8, 2002, for 1 1
2
312
minvtes. I did not leave the presence of Justice Butts and Rob Riley for more than a few
minutes at any point from the time 1 arrived at Rob’s office until we left for the victory
speech at the end of the day. I do not believe that 1 was out of Justice Butts’ and Rob
Riley’s presence for 1 1 consecutive minutes at or around 10:52 a.m. that day. If there
had been a conference call conducted by speaker phone in Rob’s office as described by
Ms. Simpson, I believe that I would have heard it. I do not recall any such call taking
place while I was there. In addition, Bill Canary was not at Rob’s office on November
1 8, 2002, nor do I recall that he participated in any conference call involving me at any
point during the post-election controversy.
The notion that Governor Siegelman would have conceded the governorship
because a photo existed of a Democratic operative planting Riley signs at a Ku Klux Klan
rally in Scottsboro, Alabama after the election strikes me as absurd. Indeed, the first time
I ever recall hearing about Riley signs at a Ku Klux Klan rally in Scottsboro, Alabama
was when 1 read a press account of Ms. Simpson’s affidavit.
I was with Justice Butts on November 1 8 virtually continuously from
approximately 9:00 a.ra. until Governor-elect Riley’s victory speech, and I am unaware
of him having had any meeting or phone call with Governor Siegelman or any
representative of Governor Siegelman to discuss a concession.
During the post-election legal controversy, there were several lawyers around the
state who served as co-counsel for the Riley campaign on various post-election legal
matters. Jill Simpson was not one of those lawyers. In fact, the first time I ever recall
hearing Ms. Simpson’s name was when 1 read an account of her affidavit on the New
York Times website.
3
313
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Michael L Lucas [map]
420 20th St N
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(205)4,58-5204
Rilr-v i-i.nd Jackson
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1744 Oxniool Rd
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Richard A Storm 111 PC [mag]
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Binningham, AL 35253-0412
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315
The gentleman’s time has expired.
Do you want
Mr. Forbes. Yes, Mr. Chairman. If the gentleman would listen
to my statement, I did not say perjury. I said referred to the De-
partment of Justice for investigation.
Mr. Davis. I thought it was extraordinary, Mr. Forbes, sir, your
statement is contradicted by the phone records.
Mr. Scott. The gentleman’s time has expired. If the Ranking
Member wants to finish his response or make a response to the
gentleman’s comments
Mr. Forbes. Mr. Chairman, I was very careful in saying that it
should be referred to the Department of Justice.
And the other thing that I emphasized — the gentleman probably
heard — was Ms. Simpson’s not here. It would be very easy to bring
Ms. Simpson here — you had the ability to call the witnesses — and
have Ms. Simpson choose the kingpin, have her be in testimony, to
have her be here so that we could cross-examine. She is not here.
That is my statement, I believe it is accurate, and
Mr. Scott. The gentleman’s time has expired.
Mr. Forbes. Thank you.
Mr. Scott. The Ranking Member of the Subcommittee, Mr. Can-
non?
Mr. Cannon. Thank you, Mr. Chairman, and I appreciate the
calm and thoughtful way you have been handling this hearing.
A couple of points that I would like to make before I ask some
questions. In response to Mr. Conyers, I just would like to point out
to Mr. Biskupic or Biskupic never knew that his name was on the
list, and I think we have verified that through out discussions with
various witnesses.
And, secondly, I would like to congratulate the gentleman from
Michigan and do hope that the newspapers lead with the headline
“allegations” in huge type, and then the rest of this about selective
prosecution in small letters, because that is clearly the distinction
that we are dealing with here.
And I want to apologize, Mr. Chairman, also. We have a markup
in Resources, and I have to be over there to vote. I have been here
other than the voting over there, but I did need to be gone. I am
sorry.
I apologize to our witnesses for not having been here for the
questioning, and I apologize if I am redundant in any way.
But, Mr. Thornburgh, I would actually like to ask you a question,
a bit of a loaded question, I grant you, but do you believe that your
client is innocent?
Mr. Thornburgh. I believe that the government has the respon-
sibility to prove his guilt beyond a reasonable doubt, and my role
is to hold the government to that standard. My beliefs one way or
the other are not really relevant.
Obviously, I believe that this is an unjustified prosecution based
on the facts that I set forth and which involved to me the use of
trivial irregularities and an attempt to escalate those into Federal
felony charges. In that sense, I do believe he is innocent.
Mr. Cannon. Well, that was really quite direct. Thank you.
I note that we have television cameras here today, and it occurs
to the mind it is not because of large type allegations but because
316
of your presence as a former Republican Attorney General. Now I
recognize the fact that you have a special interest in the Depart-
ment of Justice and that your concerns about the department carry
a personalized and a particular view.
But it seems to me that your appearance here today does a cou-
ple of dramatic things. In the first place, it says that you believe
strongly enough about this that you should appear. Don’t you think
that afects the nature of the case that is going forward in a way
that may help your client, but may be detrimental to the depart-
ment?
Mr. Thornburgh. I would certainly hope not. I appear here
today as a lawyer for an individual who has been charged with a
Federal felony, serious, 84 counts of felony, and my job as a lawyer
is to represent that individual as best I can and see that insofar
as he is concerned, justice is accomplished.
Mr. Cannon. That is a very lawyerly statement, and I agree with
it entirely as a lawyer. But you are not just a lawyer. The reason
the cameras are here today are not because you are a lawyer de-
fending a client who you may believe or whom you are just defend-
ing and trying to get the best defense possible. That is not why
they are here. They are here because of your prior status. Doesn’t
that concern you somewhat?
Mr. Thornburgh. Well, I do have a devotion to the Department
of Justice. I served over half of my professional career in the De-
partment of Justice in one capacity or another, and I have spoken
out previously on irregularities that I think are occurring, most no-
tably on the attempt to subvert the attorney-client privilege which
has been undertaken by the department.
Mr. Cannon. And we agree on that point, by the way.
Mr. Thornburgh. Well, that is an example
Mr. Cannon. There are lots of issues out here.
Mr. Thornburgh. Yeah, that is right, and one of the issues to
me is the overreaching of Federal prosecutors to create Federal of-
fenses out of trivial violations of
Mr. Cannon. We do not disagree on much, let me just say, and,
clearly, look, my biggest concern is with your role and your history
and your current advocacy because you are advocating for your cli-
ent.
Mr. Thornburgh. I am, indeed. I am here
Mr. Cannon. My problem is that the Justice Department will al-
ways have problems whatever the Administration is, and it is the
job of this Committee to help keep those things on track. It is easy
for that organization to go off track a little bit. It has, as you know,
wonderful institutions, wonderful rules, wonderful checks and bal-
ances within the department. Those are deteriorating for many rea-
sons, including the war on terror.
I would just in conclusion suggest that you take a step back as
an advocate and recognize that our job here is not to hammer the
former Attorney General, not to make a case in a narrow sense
against one prosecutor or against, say, two prosecutors, which, by
the way, after having been in some of these cases, they are not be-
fore us today.
The fact is we have prosecutors who, generally speaking, are
doing a good job and, as a Committee, we have a responsibility to
317
help reinforce the good and root out the bad, and I suspect that if
you reflect on this, you are going to agree that your advocacy here
probably is counterproductive to your longer-term views and con-
cerns about the department.
Mr. Thornburgh. I would certainly hope not, but I appreciate
your views on that.
Mr. Scott. Thank you. The gentleman’s time has expired.
Did the gentleman from Georgia have a motion to make?
Mr. Johnson. Yes, Mr. Chairman. I request that the gentleman
from Alabama, Mr. Davis, be granted 1 minute of my time.
Mr. Scott. Without objection, the gentleman from Alabama is
recognized for 6 minutes.
Mr. Davis. Thank you, Mr. Chairman.
Thank you, Mr. Johnson, for yielding.
Mr. Jones, most of my questions would be to you, but I do
want
Mr. Delahunt. Mr. Chairman?
Mr. Scott. The gentleman from Massachusetts?
Mr. Delahunt. Yes. A parliamentary inquiry.
Mr. Scott. State the inquiry.
Mr. Delahunt. Is it appropriate at this point in time for me to
move to grant to the gentleman from Alabama 4 minutes of my
time?
Mr. Scott. Without objection, the gentleman is recognized for 10
minutes.
Mr. Davis. Thank you, Mr. Delahunt, for being so gracious, also.
Most of my questions, Mr. Jones, would be to you, but I want to
briefly pick up on the point that I made before. There was a loss
of exchange between myself and Mr. Forbes.
One of the irresolvable questions before this Committee is the ve-
racity of the individuals who submitted these affidavits. This Com-
mittee is not a grand jury. This Committee is not a jury. So we are
enormously limited and we should be limited in our capacity to de-
termine who is being accurate and who is not. I suppose the public
has to make that judgment.
But I do want to make sure that we do not turn this into a hear-
ing in which we cast dispersions on witnesses to suggest that they
have manipulated their testimony and, if that is done, it needs to
be done with a factual foundation. So I turn again to the point that
I made earlier.
This is a material question here. Simpson alleges that on Novem-
ber 18, 2002, she had a conference call with Terry Butts, former
member of the Alabama Supreme Court who had become politically
active; a gentleman named William Canary, political operative in
Alabama whose wife was the U.S. attorney then and is still now
the U.S. attorney of the Middle District of Alabama; and Rob Riley,
an attorney who practices at the firm Riley Jackson, the son of the
current governor.
Three affidavits submitted today by Mr. Riley, Mr. Butts, and
another individual who was working for Mr. Butts, Mr. Matt
Lembke. All three of these affidavits make the assertion that there
was no phone call on November 18 in which they participated with
Jill Simpson. Exhibit 4 to the Simpson deposition, which I have
asked unanimous consent that it be introduced into the record of
318
these proceedings, is crystal clear on one point. If you look at the
bottom of the entry, 11/18/2002, a call to Birmingham, Alabama, to
205-870-9866, for 11 minutes. If you run a search on NetOpus.net,
you will find Riley & Jackson, phone number 205-870-9866.
Mr. Chairman, I believe I have asked unanimous consent that
this search inquiry be admitted into the record.
So, before we make judgments about Simpson or anyone else, let
those judgments not be immediately contradicted by the phone
records and the unimpeachable facts.
Mr. Jones, you mentioned your representation as Don
Siegelman’s attorney in connection with the matters that eventu-
ally led to his indictment. I want to focus you on one timeframe.
I want to focus you on the end of 2004, at least the last 6 months
of 2004.
Because even with 10 minutes, my time is limited. I am going
to move to the questions, and I ask you to give me quick responses.
In the end of 2005 or that last 6 months of 2004, were you in
regular conversations with two prosecutors in Montgomery and the
U.S. attorney’s office, Mr. Feaga and Mr. Franklin?
Mr. Jones. Congressman, I attempted to be for several months
after we were told we would get an answer within 30 days. I at-
tempted to be, and it was very little conversation until ultimately
the conversation on the telephone in late November, early Decem-
ber of 2004
Mr. Davis. Okay. Now, before we get to that, during the period
of time when you were in communication with Mr. Feaga and Mr.
Franklin, did there come a point when they made representations
to you regarding the quality of their case against Mr. Siegelman?
Mr. Jones. Yes. That was in July of 2004.
Mr. Davis. Would you quickly tell the Committee about that con-
versation?
Mr. Jones. Essentially, we were told that most all of the allega-
tions that we had been looking at previously had been written off,
they were too trivial to bring with the former governor.
Mr. Davis. Now let me slow you down. This is important. The
people who made the representation to you that most of the allega-
tions against Don Siegelman had been written off were the two
prosecutors, Mr. Feaga and Mr. Franklin. Is that right?
Mr. Jones. That is correct.
Mr. Davis. All right. Continue.
Mr. Jones. We were also told that they had narrowed the focus
down — they had only been on the case, by the way, about 3
months — into three areas. Two of those areas which I have outlined
were absolutely clear. There was no crime committed. We knew
that there was nothing there. They recognized that. The issue with
the
Mr. Davis. And, again, I am going to slow you down. When you
say “they recognized that,” you are saying that Mr. Franklin and
Mr. Feaga acknowledged to you that two other areas had little or
no merit?
Mr. Jones. Well, I will not say they used those terms, but it was
pretty obvious they were concerned about that area.
Mr. Davis. Okay.
319
Mr. Jones. The third one involved the allegation of this appoint-
ment of Richard Scrushy to the CON Board, and while Mr. Feaga
did say
Mr. Davis. Now let me slow you down because, again, you and
I know these facts. Everybody here does not. There was an allega-
tion that was eventually included in the indictment that Mr.
Scrushy was appointed to the state certificate of need board and
that there was a quid pro quo in which Scrushy agreed to con-
tribute money to a lottery initiative the governor was sponsoring.
That was one of the allegations, correct?
Mr. Jones. Correct.
Mr. Davis. And Mr. Feaga and Mr. Franklin indicated to you, did
they not, that that was the dominant area in which they were look-
ing as of July 2004? Is that correct?
Mr. Jones. That is correct. Congressman.
Mr. Davis. Did Mr. Feaga and Mr. Franklin characterize to you
the quality of the evidence around that particular allegation?
Mr. Jones. The way they characterized the evidence, you know,
Mr. Feaga in particular felt that the circumstantial evidence, in his
view, was compelling, but as I rattled off all the defenses and all
of the facts that were holes that they had in the case, which they
never filled, by the way, he also acknowledged that the defenses in
that case factually and legally were also compelling, and it was
very troubling, and it indicated to us that if he could not fill those
holes, then likely these charges would not be brought.
Mr. Davis. Did the lottery transaction or the alleged quid pro
quo rest on the testimony of one particular cooperating defendant,
Nick Bailey?
Mr. Jones. Nick Bailey solely.
Mr. Davis. Did Mr. Feaga indicate to you in his conversations
that there were problems with the credibility of Nick Bailey?
Mr. Jones. Yes. Everyone
Mr. Davis. Would you tell the Committee about that?
Mr. Jones. He knew that. Everyone knew that. Mr. Bailey had
committed several crimes with Lanny Young. He had taken a cou-
ple hundred thousand dollars worth of bribes, and there was a seri-
ous gap factually in
Mr. Davis. In addition to the normal kinds of impeachment, co-
operating witness, the fact that Mr. Bailey admitted to numerous
crimes, did Mr. Bailey or did Mr. Feaga indicate to you that at one
point Mr. Bailey had changed his story regarding the transaction?
Mr. Jones. Not at that time. Not at that time. Congressman. At
that time, that was the significant gap because what Mr. Bailey
was telling them could not match up to the objective facts about
when the check was cut, when it was delivered to Montgomery.
Mr. Davis. And did Mr. Feaga acknowledge that there was this
gap based on Mr. Bailey’s testimony?
Mr. Jones. Oh, yes, sir. Absolutely. And it was not until later
when I brought that back up — and this would have been in 2005 —
where he said, “Well, Mr. Bailey has now essentially rethought his
testimony, and that is not”
Mr. Davis. All right. But as of July of 2004, did Mr. Feaga sug-
gest to you that there were major factual gaps in Nick Bailey’s tes-
timony?
320
Mr. Jones. Yes, sir. That is why he wanted us to toll the statute
of limitations so they could try to fill those gaps.
Mr. Davis. All right. What was your state of mind in July, early
summer of 2004, regarding the likelihood of the U.S. attorney’s of-
fice bringing a case against Don Siegelman?
Mr. Jones. All three of us — all three of the defense lawyers — felt
like that case was coming to a close within the next
Mr. Davis. And was that based on statements or your reading
from statements that the prosecutors — Mr. Franklin, Mr. Feaga —
made to you?
Mr. Jones. It was based on those statements. It was based on
my 20-something years of experience, and it was based on our own
investigation.
Mr. Davis. Did there come a point at the end of 2004 when Mr.
Feaga indicated to you that he had been in communications with
the Department of Justice regarding this case?
Mr. Jones. That is correct. In late November of 2004, early De-
cember, Mr. Feaga apologized for not giving us the answer he had
promised earlier, but indicated there had been a meeting in Wash-
ington and that the lawyers in Washington had asked him to go
back and look at the case, review the case top to bottom.
Mr. Davis. Did Mr. Feaga suggest to you when the communica-
tions with the lawyers in Washington had happened regarding the
Siegelman case?
Mr. Jones. He did not. He just said, “We had a meeting in Wash-
ington.”
Mr. Davis. But your interaction with Mr. Feaga was in Novem-
ber 2004. Is that correct?
Mr. Jones. Correct.
Mr. Davis. Inferring to you that the conversations happened at
some point prior to November 2004?
Mr. Jones. That is correct.
Mr. Davis. We have had the Ranking Member introduce into the
record the full transcript, the sworn transcript, of Jill Simpson’s
testimony of September 14. Let me refer to it.
On pages 50, 51 and 52, Ms. Simpson testifies that in early 2005,
she had an exchange with an individual, Rob Riley, and that Mr.
Riley made the representation to her that he had been told that
Karl Rove, the President’s former political adviser, had been in
communication with the Office of Public Integrity and that he, Mr.
Rove, had prodded the Office of Public Integrity to bring a case
against Mr. Siegelman.
Certainly, all of us figured on time to review in detail what she
said, but that is contained on pages 50, 51 and 52. In other words,
Ms. Simpson’s suggests that the timeframe of Rove’s intervention
happened in late 2004, Mr. Rove’s intervention at the Department
of Justice.
Mr. Jones, did Mr. Feaga indicated to you that he had been in
communication with the Department of Justice at some point in
late 2004 during the exact timeframe as Simpson alludes to?
Mr. Jones. Congressman, he not only indicated to me, but there
were lawyers representing witnesses later on that he also made the
same representations to. Yes.
321
Mr. Davis. Mr. Chairman, my time has expired. I will have my
5 minutes come around to me eventually, but I thank my col-
leagues for yielding their time to me.
Mr. Scott. Thank you. I think we used your 5 minutes. You had
4 from Delahunt, 1 from the gentleman from Georgia and your 5.
So I think you may be getting someone else’s.
Ms. Lofgren. Mr. Chairman, I would be happy to yield a minute
of my time to the gentleman.
Mr. Scott. Okay. Let’s go at this time to the gentleman from
Ohio, Mr. Jordan?
Mr. Jordan. I thank the Chairman. I would like to yield a couple
minutes to the Ranking Member on the Commercial Committee.
Mr. Cannon. Thank you. I appreciate the yielding.
And I am intrigued by the gentleman from Alabama, Mr. Davis,
who, as I understand, was a prosecutor and who is now interro-
gating a friendly witness based upon conversations with the opposi-
tion, and I think the record should sort of reflect the fact that the
testimony thus far is sort of one-sided.
I would like to suggest a couple of things here. In the first case,
Mr. Feaga is a well-known prosecutor who, in fact, did prosecute
Democratic Governor Siegelman, but he also prosecuted former Re-
publican Governor Guy Hunt. This is a guy who I think is well-re-
spected in the field. You may have some personal views about him.
I do not know, Mr. Davis. But he is not a Republican hack going
after Democrats. I do not think that would be fair to say.
And I would like to ask unanimous consent to introduce into the
record a letter to The New York Times sent by Mr. Feaga, and I
am just going to read one paragraph, and then I will yield back.
[The information referred to follows:]
322
Origina] Message
Kri'ni: slevel’eaga
lo: iettors Jnytimes.coni
Sent: Mon, 9 Jul 2007 11:31 am
Subject: Fvvd: Your Editorial on U.S. v. Siegclman
Sirs: I am re-sending my letter which I sent you on 7 July 2007. As requested in your automated email
reply f am sending the contact info you require, i tried to shorten the letter down to 150 words. The
large number ofmistaken assertions In the editorial made that impo.ssible. Sincerely Steve Fcaga.
Assistant United States Attorney. Middle District of Alabama
Sirs:
Your recent editorial about the prosecution of Don Slegelman contains several mistaken assertions
about the case. I am writing to correct a few of them.
Siegeiman recetved both persona) and campaign funds in exchange for favorable discretionary
actions as Governor. Five trial witnesses testified from first-hand knowledge to the existence of an
express quid pro quo agreement between Siegeiman and three people who paid Siegeiman in
exchange for official action. Two of these witnesses testified that they had personally made
agreements with Siegeiman and paid him money in exchange for a promise to perform official
acts. The other three witnesses testified that they were told, either by Siegeiman or the also-
convicted bribe payor, of the existence of the agreements. In the instances when the money paid
in exchange for the promise was a campaign contribution, the evidence at trial proved that
Siegeiman went to extraordinary lengths, including violating Alabama's Fair Campaign Practices Act
7 1 1 2007
323
Page 2 of 2
disclosure requirements, to hide the contribution. Neither Siegelman nor his convicted co-
defendant took the stand to deny any of these assertions.
The claim of Dana Jill Simpson that she participated in a telephone call allegedly establishing
a White House connection to the case has been refuted publicly by all of the other alleged
participants, including Terry Butts, a former justic® of the Alabama Supreme Court and co-counsel
for Siegelman's co-defendant at the trial, I have no way of knowing what occurred in Washington
D.C., or elsewhere, when I was not present. What I do know is that no one pressured me, in any
way, to pursue these charges.
The case of United States v. Siegelman was pursued and successfully prosecuted because my co-
counsel and I, a grand jury, a trial jury, and a federal judge, after hearing the facts, believed that
those facts established that Siegelman unlawfully sold out the best interests of the people of the
State of Alabama. Any assertion to the contrary, regardless of how well or maliciously intended, is
just plain wrong.
Sincerely,
Stephen P. Feaga
Assistant United States Attorney
Co-counsel in the prosecution of U.S. v. Siegelman, Scrushy, et. al.
in 1/2007
324
Mr. Davis. If the gentleman would yield, he is actually a very
fine lawyer, and I work with him. He inquired about my personal
opinion, a very fine man, a very fine lawyer. I did not suggest oth-
erwise.
Mr. Cannon. I appreciate that, especially in the context of his
statement. This is a letter to the editor of The New York Times,
I believe. “The case of the United States v. Siegelman was pursued
and successfully prosecuted because my co-counsel and I, a grand
jury, a trial jury and a Federal judge, after hearing the facts, be-
lieved that those facts established that Siegelman unlawfully sold
out the best interests of the people in the State of Alabama. Any
assertion to the contrary, regardless how well or maliciously in-
tended, is just plain wrong. We are not a court of law. We are not
a jury. We are not looking at Mr. Feaga.”
And I think that he has actually come out of this particular
round of this discussion pretty darn well, and the friendly witness
testimony to the contrary notwithstanding, this is not about wheth-
er Mr. Siegelman should or should not be in jail. It is about the
Department of Justice, and I think that what we have heard so far
is not compelling that we have a problem with it or the problems
we have are not being resolved by this hearing.
And I would yield back to the gentleman from Ohio, and I think
that the gentleman, Mr. Forbes, would like to have time yielded to
him.
Mr. Jordan. Mr. Chairman, I would like yield the remainder of
my time to Mr. Forbes.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Jones, I just want to come back to you because, you know,
the problem we have with these hearings is we get all kinds of ap-
ples and oranges and everything that is involved, and I know that
you did not get to be in the trial with Governor Siegelman. That
was your testimony.
Mr. Jones. Correct. That is correct.
Mr. Forbes. But Governor Siegelman did go to trial. Isn’t that
true?
Mr. Jones. He did.
Mr. Forbes. And he had, I am sure, talented and competent at-
torneys who you would worked with before, and you do not lay any
claim that they were not competent or did not do a good job at the
trial, did you?
Mr. Jones. You know they are sitting right behind me, and I
would not dare say that. [Laughter.]
Mr. Forbes. They would beat you. They would hit you with a
chair by then.
Mr. Jones. No. You are right.
Mr. Forbes. And all they were able to ask whatever questions
they want under the appropriate rules of procedure for the court
to the witnesses that were testifying at that trial, weren’t they?
Mr. Jones. I am assuming that is true.
Mr. Forbes. And at the end of all of that trial, not the short lit-
tle tidbits that we have here today, but at the end of the trial, a
full Federal trial, a jury found Governor Siegelman guilty. Is that
correct?
Mr. Jones. That is correct.
325
Mr. Forbes. And I am sure there were motions made after that
to the Federal judge to find something that the jury did wrong, and
the judge said no and he sentenced Governor Siegelman based on
that trial. Is that accurate?
Mr. Jones. That is correct.
Mr. Forbes. And now that is up on appeal, and we trust judges
to look at that. In fact, the Chairman of this Committee made a
statement the other day when he came in to national security
issues. If you trust judges, you do not have any problem with this
act. We trust them for national security issues, but we do not trust
them on these kind of legal procedures.
And, basically, Mr. Thornburgh raised the question about the ap-
pearance of impropriety, and then we emphasize allegations. But
here is what happens. The cycle repeats itself over and over again.
You make allegations. You bring witnesses in who make state-
ments sometimes without facts because it is something they have
read in the paper or they have heard or they have seen. The pros-
ecutors cannot even come in here and refute it because they feel
ethically that would be improper to do.
Then you make the allegations long enough and loud enough,
people begin believing and taking those allegations as fact, and
then, all of a sudden, you have an appearance of impropriety which
leads to the erosion of public confidence. We come in here and re-
peat the cycle over and say, “Why does it happen?”
Mr. Shields, I hope I will get a few more minutes with you, but
I only have a couple seconds now.
You do not have a law degree, do you?
Mr. Shields. No.
Mr. Jones. And you do not have a degree in statistics, do you?
Mr. Shields. I have taken a number of statistics courses.
Mr. Scott. Will the gentleman use the microphone, please?
Mr. Jones. But you have taken some courses, right?
Mr. Shields. I have taken about 18 hours worth, yes.
Mr. Jones. Okay. And in just the couple of seconds I have left,
why did you not limit the data in your study to either actual indict-
ments or convictions instead of just the ones that were reported in
newspapers?
Mr. Shields. Well, because I am a communication professor, and
I am interested in communications.
Mr. Jones. That is right. You are a communication professor,
and you are not looking at statistics of what actually happened.
You are looking at the communications. But isn’t it true — or maybe
you do not know this, not having a law degree or a statistics de-
gree — ^but a lot of investigations by prosecutors are never made
public, are they?
Mr. Shields. No, but they are just as damaging when they are
made public, as if they had prosecuted.
Mr. Jones. I am sorry?
Mr. Shields. As if they had indicted
Mr. Jones. No, no. When you are looking at the investigations,
there are a lot of investigations that take place that are not re-
ported in newspapers. Isn’t that true?
Mr. Shields. Well, I have found
Mr. Jones. But you do not know that. You are not a lawyer.
326
Mr. Shields. I am not a lawyer, but I have found a number of
investigations were reported in the newspaper.
Mr. Jones. I see, but you do not know about the ones that were
not reported in the newspapers.
Mr. Shields. No.
Mr. Jones. Okay. Thank you.
Mr. Shields. The DOJ will not give us that information.
Mr. Jones. That is right.
I yield back.
Mr. Scott. The gentleman from North Carolina, Mr. Watt?
Mr. Watt. Thank you, Mr. Chairman.
Professor Shields, I am struck by one particular section of your
testimony that I want to read into the record and get you to elabo-
rate on.
Your hypothesis was that party affiliations of the officials and
candidates investigated would match the normative data. I am
reading from page 4 of your testimony. However, the sample in-
cludes 631, 76.95 percent, investigations of Democrats and 142,
17.32 percent, investigations of Republicans, and 47, 5.73 percent,
investigations of Independents or other officeholders or candidates.
And then you say this, which I want to make sure that nobody
misses, “The disparity in the proportions of the actual sample be-
tween investigations and-or indictments of Democrats in relation to
Republicans is again statistically significant beyond the .0001 level
and could have occurred by chance less than one in 1,000 samples.
Mr. Shields. Yes, that is 10,000.
Mr. Watt. One in 10,000 samples. Does that mean. Professor,
that all else, everything else being equal, the chances of no political
partisanship being taken into consideration in this grouping of
prosecutions, charges, investigations, is less than one in 10,000?
Mr. Shields. It is pretty significant data, yes. That is the point.
Less than one in 10,000 chances of this data being in error when
you do the chi-square statistic.
Mr. Watt. Okay. And so if you just did a regular statistical anal-
ysis, the chances that something other than sheer chance was
taken into account?
Mr. Shields. That is correct. That is correct.
Mr. Watt. It is less than one in 10,000.
Mr. Shields. Yes.
Mr. Watt. Okay. That is what I wanted to be clear on.
With that, I will yield the balance of my time to the gentleman
from Alabama.
Mr. Davis. Thank you, Mr. Watt.
Mr. Jones, let me return to you, and let us pick up the timeframe
that we previously talked about after Mr. Feaga represented to you
that the Department of Justice wanted a review of this case. As
you move into the 2005 calendar year, did there seem to be a
change in the tenor and the tone of the investigation that you
noted?
Mr. Jones. A hundred and eighty degrees opposite.
Mr. Davis. Would you tell us about it?
Mr. Jones. Every month with the grand jury, we saw new wit-
nesses coming forward. Everything was back off the table. The Eed-
eral role was, I think, greater. It was very public, and it was very
327
intense. It was not a review literally as a review. It was as if the
case started all over again.
Mr. Davis. Did it appear that the U.S. attorney’s office had ceded
a significant amount of the day-in, day-out responsibility in this
case to the Department of Justice?
Mr. Jones. Well, the FBI were doing the day to day, and Mr.
Feaga was conducting most of that grand jury, as I understand it.
Mr. Davis. Does the name Noel Hillman register to you?
Mr. Jones. Yes. He was head of the public integrity section at
the time.
Mr. Davis. Did Mr. Hillman at some point move from public in-
tegrity to become a United States district judge?
Mr. Jones. He did.
Mr. Davis. And was it shortly after the period of time in which
he would have been the Office of Public Integrity to go from Public
Integrity to the U.S. district judgeship?
Mr. Jones. That is correct. That is correct.
Mr. Davis. Let me refer to the opening statement that you have
submitted to the Committee today. I want you to elaborate on this
sentence. You talk about how the tenor and tone of the investiga-
tion changed, and there appeared to be a systematic effort to gath-
er any negative evidence on Mr. Siegelman.
This is what you say, “Targeting individuals rather than crimes
taints that entire process,” referring to the system of justice, “and
gives investigators and prosecutors an ends-justify-the-means li-
cense to abuse the public’s trust.”
Mr. Jones, would you elaborate on what you mean by that sen-
tence?
Mr. Jones. Certainly, that is exactly what appeared to have hap-
pened here. There were allegations that had surfaced that had
been written off, but then, all of a sudden, there was this much
wider net that we were seeing that included every financial con-
tributor, every investment that Don Siegelman had made, every
check that his wife had written. This was — my public statements
reflect it — an investigation about an individual, and that is just
something that we cannot tolerate in this country, to investigate
individuals. It does give prosecutors — and investigators as well — li-
censes to change, to twist, to cajole testimony.
Mr. Davis. Mr. Thornburgh, would you comment on that?
Mr. Thornburgh. I think that the responsibility of prosecutors
at every level of government is simply to follow the evidence wher-
ever it leads, and oftentimes it leads to people in high public office,
and they should not hesitate to prosecute those persons. But it is
all evidence based and not based on any targeting process.
Mr. Scott. The gentleman’s time has expired.
The gentlelady from Ohio, do you have a motion?
Ms. Sutton. Thank you, Mr. Chairman.
I ask unanimous consent to yield my 5 minutes to the gentleman,
Mr. Davis.
Mr. Forbes. Mr. Chairman, I have no problem with her yielding
her 5 minutes when it is time for her to go, if that is okay.
Mr. Scott. Without objection, her time is yielded to the gen-
tleman from Alabama and will be used when her time would have
come up.
328
Ms. Sutton. Thank you, Mr. Chairman.
Mr. Scott. The gentleman from Texas, Mr. Gohmert?
Mr. Gohmert. Thank you, Mr. Chairman.
And I appreciate the witnesses being here.
As a former judge, former prosecutor, former chief justice, I am
always curious as to how people arrive at conclusions, and so I am
curious about a number of things.
First of all, I really do not know the answer. Do you know how
many Democratic Party members are elected officeholders in the
United States? Any one of you?
Mr. Shields. The total number of elected officials in the United
States is estimated at slightly over 500,000, and so it would be
about 50 percent of that.
Mr. Gohmert. And where does that information come from?
Mr. Shields. The total number of elected officers, I think, comes
from the Department of Commerce, and the 50 percent information
comes from the Eagleton Institute of Rutgers University.
Mr. Gohmert. The Eagleton Institute?
Mr. Shields. Yes.
Mr. Gohmert. Okay. And do you know how recent that 50 per-
cent figure was obtained and how it was obtained?
Mr. Shields. Yes. I obtained it when I started the study, and it
is as recent as 2002.
Mr. Gohmert. Okay. All right. So it does not take into account,
well, I guess the last 5 years then. And that is interesting that it
is 50-50, and it is
Mr. Shields. No, it is 50, 41 and 9.
Mr. Gohmert. Oh, 50
Mr. Shields. Forty-one Republican and 9 Independent-Other.
Mr. Gohmert. Oh, okay. So there are many more Democratic
Party member officeholders than there are Republicans.
Mr. Shields. Well, there is 9 percent more.
Mr. Gohmert. Okay. All right. Okay. And by your study, have
you ruled out the possibility completely that perhaps there are
more Democratic Party member officeholders who have violated the
law than there are Republicans who have violated it?
Mr. Shields. Well
Mr. Gohmert. Do you just take that as a given or
Mr. Shields. No, Mr. Gohmert. That is a legitimate question,
and that is why I had the control group with nonfederal law en-
forcement from the state and county, the city prosecutorial level as
reported in the study. There were 251 individuals in that, and
there the investigations reflected 50 percent Democrat, 41 percent
Republican and 9 percent Independent/Other, which, across the
Nation, meant that it exactly matched the percentages of elected
officeholders. So
Mr. Gohmert. Okay. So
Mr. Shields [continuing]. That there was no political bias at the
state and local level, and the question then became: Why is there
at the Federal level?
Mr. Gohmert. Okay. So you would take a city or take 251. How
did you arrive at those 251?
Mr. Shields. Selected them from newspaper accounts and tele-
vision accounts using Google searches.
329
Mr. Gohmert. Right. But you are saying that was your control
group. I find it interesting, though, when you try to extrapolate
numbers across the country because we know from some of our
Committee hearings, for example, there are six murders per
100,000 people in New York, there were 50 murders per 100,000
in New Orleans before Katrina. I think our last hearing said there
were 90 murders. So there are different rates of crime around the
county depending on what is being prosecuted and which crimes
are actually being looked at.
But I am so intrigued. When I was looking at your study and
some of the results because this is my third year here in Congress,
and the whole time here, I have heard now Speaker Pelosi and
other leaders in the Congress talk about repeatedly Republican cul-
ture of corruption. Republican culture of corruption. Republican
culture of corruption, and I had no idea there were more Democrats
corrupt than there were Republicans, according to the prosecutions
that were going on. So that was quite enlightening.
Mr. Shields. I suspect that is because she was talking about her
colleagues in the House and the colleagues in the Senate.
Mr. Gohmert. Well, that is an interesting issue, too, because if
you read the 80-page affidavit getting a search warrant to go into
William Jefferson’s office, and if you took the things in there that
were sworn to be true as true, then I do not know why he was not
prosecuted prior to the 2006 election. It looks like it was a lay-
down case if they could prove the things they swore were true in
that affidavit.
Yet the prosecution, as I understand it, demanded that a month
before the election, he enter the plea if there were going to be any
agreement. Otherwise, the agreement was off, which sure looks like
politics, kind of like when Caspar Weinberger was indicted in June
before the election in 1992 which had an effect on the election, just
like Bob Ney’s situation did, too. So I see why it was
Mr. Shields. Mr. Gohmert
Mr. Gohmert [continuing]. Enlightening to know that there are
more Democrats in trouble than there are Republicans, and I am
pleased to know that I will be able to use your study helpfully
Mr. Shields. There are 17 percent in the sample. I would say
that sometimes
Mr. Gohmert. Oh, so you are saying that that is
Mr. Shields. No, it is not.
Mr. Gohmert [continuing]. Not a big deal?
Mr. Shields. The issue you raise of timing of when the investiga-
tions occur is very important no matter whether it is a Republican
or whether it is a Democrat.
Mr. Gohmert. Sure it is.
Mr. Shields. I am not here to defend one or the other. I do not
like either one of them when they occur, and there is no doubt, I
think, that this Justice Department also investigated some liberal
Republicans that did not quite pass their litmus test, and I think
that is probably reflected in the data, too.
Mr. Scott. The gentleman’s time has expired.
Mr. Gohmert. I would yield back, but I do not have anything to
yield.
330
Mr. Scott. The gentleman from Georgia, Mr. Johnson, for 4 min-
utes?
Mr. Johnson. Thank you, Mr. Chairman.
Perhaps the most significant statement about the dangers of po-
litical interference with prosecutorial judgments was made by then
Attorney General and later Supreme Court Justice Robert H. Jack-
son who stated that, “With the law books filled with a great assort-
ment of crimes, a prosecutor stands a fair chance of finding at least
a technical violation of some act on the part of almost anyone.
“In such a case, it is not a question of discovering the commission
of a crime and then looking for the man who has committed it. It
is a question of picking the man and then searching the law books
or putting the investigators to work to pin some offense on him.
“It is in this realm in which the prosecutor picks someone whom
he dislikes or desires to embarrass or selects some group or un-
popular person and then looks for an offense that the greatest dan-
ger of abuse of prosecuting power lies.”
And having said that, I would like to point out that along with
concerns about Governor Siegelman and George Wilson being in-
vestigated because of pressure from the White House and from
Karl Rove, there are concerns about the prosecution of Georgia
State Senator Charles Walker.
Senator Walker has a case that is on appeal. His lawyers,
Dershowitz, Eiger & Adelson, in an October 22, 2007, letter, which
appears in our packet, have asked the Committee to take a look at
this case, and I just want to talk about the case.
Senator Walker was one of the Georgia’s most prominent Black
politicians, a former state senator who had served in a legislature
for 20 years. He made history in 1996 by being elected as senate
majority leader in Georgia, making him the first African-American
to become a senate leader in the country. His efforts in changing
the state flag and beating the current governor for the position of
senate majority leader has led many to believe that those events
led to his downfall.
During the current governor’s campaign for governor — and he
switched from the Democratic Party to the Republican Party — the
current governor vowed to create an inspector general’s office to in-
vestigate corruption and cronyism. To drive the point home, he not
only traveled to Senator Walker’s hometown of Augusta to intro-
duce this initiative, he held a press conference in front of one of
Senator Walker’s businesses.
Concurrently, the Georgia Republican leadership openly pressed
the U.S. attorney to go after prominent Democrats, a fact that was
confirmed through a subsequent investigation by the Justice De-
partment. The current governor won the election.
Walker was defeated in his bid for re-election, and it was later
revealed that the U.S. attorney, Richard Thompson, was carrying
out a political agenda with respect to some of his investigations on
Walker and others. The Office of Professional Responsibility inves-
tigation within the Department of Justice found that Thompson
was guilty of a number of politically motivated ethical lapses, in-
cluding his duty to refrain from making public comments on ongo-
ing investigations, his duty to refrain from participating in a mat-
ter that directly affected the interest of a personal friend, that is.
331
the governor, and political ally and, three, his duty to refrain from
taking action that would interfere with or affect an election.
The investigation concluded that U.S. Attorney Thompson
abused his authority and violated the public trust for the purposes
of benefiting a personal and political ally. Thompson later resigned
his office as U.S. attorney in disgrace.
The investigation of the former officials were dropped, but the in-
vestigation of Senator Walker continued. Thompson’s successor,
Lisa Godby Wood, continued the investigation which resulted in an
indictment filed against Walker on 142 counts of mail fraud, tax
fraud and conspiracy, including numerous counts related to his
service as a member of the Georgia Assembly.
Several questions with respect to Senator Walker’s trial had been
raised from the integrity of the judge presiding to the selection of
the jury. The judge, U.S. District Court Judge Dudley Bowen,
whose nomination Senator Walker had opposed due to allegations
that the judge was a member of private clubs which excluded
Blacks, had close ties to the Augusta newspaper which was the
principal competitor of Senator Walker’s newspaper business, and
the jury pool was expanded from the largely minority district of
Augusta, Georgia, to the outlying areas outlining the city which is
predominantly White which resulted in an expanded jury pool.
This issue has ignited a lot of attention. Senator Walker’s case
is on appeal.
And I will yield back the remainder of my time.
Thank you.
Mr. Scott. Thank you.
The gentleman from California, Mr. Lungren, who is a former at-
torney general?
Mr. Lungren. Thank you very much, Mr. Chairman.
And I thank the witnesses for appearing.
The quote from Justice Jackson was, in fact, an important quote
for all of us to consider, particularly the part where he says, “It is
in this realm where the prosecutor picks some person whom he dis-
likes or desires to embarrass or selects some group or unpopular
person and then looks for an offense that the greatest danger of
abuse of prosecuting power lies.
“It is here that law enforcement becomes personal, and the real
crime becomes that of being unpopular with the predominant or
governing group being attached to the wrong political views or
being personally obnoxious to or in the way of the prosecutor him-
self”
And I do think that is an admonition against prosecutors. I
would also think it is an admonition against Members of Congress
in the way we conduct ourselves from time to time, that it is a tre-
mendous temptation to try and find some particular item that we
can to discredit someone.
Having said that, Mr. Attorney General Thornburgh, I just want
to say that I have great respect for you. I can recall when you were
Attorney General and you had a meeting with Members of my side
of the aisle, including a number of Members of this panel, some 20
years ago at which time a Member of this Committee was under
investigation by your department — and I think you came about
that close to reading him his Miranda rights during the meeting
332
we had — and the only reason I mention that is I understand the
difficulty when we have law enforcement with a discretion that is
given to them through the Constitution and the proper appoint-
ment by the President, in your instance, and the political interplay
that takes place with respect to public policy issues.
I take very seriously claims of selective prosecution, but I also re-
call being, as attorney general of California, accused of selective
prosecution whether you brought a case or you did not bring a case
whenever there was some political element involved, and I under-
stand how serious and difficult it is for you to make such claims
in this case, although there are a series of questions that were
asked you, and I wish I could get into them, but I do not have
enough time.
I would like to direct some questions to Mr. Jones.
On the record, I will just say Don Siegelman’s a friend of mine.
He served as Attorney General when I was attorney general. I got
to know him and his wife and his family, and while I would oppose
selective prosecution of any individual, I would particularly take of-
fense on someone I know and someone I served with and, during
the time I served with him, found to be a credible and responsible
person.
So the allegations that are alleged here are very serious, in my
estimation, and so I just want to get a feel from you about the pros-
ecutor in the case, the person who actually prosecuted the case and
the acting U.S. attorney.
When I received a call from Governor Siegelman’s wife on this,
I started to make a little bit of an inquiry myself, and one of the
things I received in response to my inquiry was the statement from
Louis Franklin on this matter in which he said, “I can, however,
state with absolutely certainty that the entire story is misleading
because Karl Rove had no role whatsoever in bringing about the in-
vestigation or prosecution of former Governor Don Siegelman. It is
intellectually dishonest to even suggest that Mr. Rove influenced or
had any input into the decision to investigate or prosecute Don
Siegelman. That decision was made by me, Louis F. Franklin, Sr.,
as the acting U.S. attorney in the case in conjunction with the De-
partment of Justice’s public integrity section and the Alabama at-
torney general’s office.”
Now that is a pretty strong statement on his part. I was thinking
of cases I had in which it turned out when we prosecuted someone,
it was someone of a high profile of the other party, who there was
a contention might be a rival of mine in a future race, and, frankly,
all I could say in response was, “I did not do it for that purpose.
I took into account prosecutors.”
I remember having a number of meetings with my career pros-
ecutors about the quantum of evidence that was there, making
them go over and over with me that quantum of evidence to con-
vince me that this was a solid case, and so I guess I am trying to
ask what is it that would have you convince me that this statement
is erroneous and that Mr. Franklin and the prosecutor in the spe-
cific case brought a case in which they did not believe, did it only
for political purposes?
And the reason I ask that is this — and, again, I come out of the
construct of my own experience — in California, the attorney general
333
has supervisory responsibility for all D.A.’s offices. When I was at-
torney general, I could take over any D.A.’s office. I could not inter-
vene to stop a prosecution, however. I could only intervene to take
over a prosecution or start one that the D.A. had refused to do, and
the thinking was that if a prosecution that should have been
brought was not brought, there is no recourse for the public.
But if there is a prosecution that is questionable and ought not
to be brought, the prosecutions are with, in the first case, the
grand jury, the judge, the appellate court and finally the Supreme
Court, and that was sort of the framework of California law, and
I thought it was a fairly reasonable approach to look at things. So,
when I hear a serious allegation from someone I consider to be a
friend that there has been selective prosecution, and I look at the
case, I would just ask you to help me on that, please.
Mr. Jones. It is a very fair question. Let me make sure you un-
derstand. I have never ever said that Louis Franklin or Steve
Feaga were politically motivated. In fact, I do believe that by the
time this indictment was rendered, they were invested in the case
and they believed it. I publically said that before.
I do not believe, however, though, that Mr. Franklin can make
any statement anymore than I can about whether or not Karl Rove
or anyone else at the White House discussed with the public integ-
rity section whether or not to go forward against Don Siegelman.
All I know is that Mr. Feaga and Mr. Franklin did not think a
lot of this case, based on my experience and what they said, in the
summer of 2004. We were told by Mr. Feaga that he was asked to
go back by the public integrity section and, in fact, that that is
what happened.
So, unlike maybe looking at U.S. attorneys, I have never thought
necessarily that Mr. Feaga or Mr. Franklin were motivated by any
political motive there.
Mr. Lungren. That goes to the question. When I was dealing
with some very difficult cases, I told my prosecutors and investiga-
tors to go back and look at it, in one case when there did not ap-
pear to be sufficient evidence, but we had accusations and in an-
other case where I did not think they had sufficient evidence, and
that is the normal course of a supervisor, and that is why I am try-
ing to find what is different here, if you could tell me so I could
figure out what is different.
Mr. Jones. Congressman, my reaction was in part the same at
the time. But when you look at the entire timeline and you look
at the fact that the indictment against Governor Siegelman had
been dismissed, and then when you look at what actually happened
in 2005, which was not just simply a review.
Remember this case had been going on for 2, 2 V 2 years, and the
allegations were there. This was more than a review. This was
going back and starting to look at areas that had never been looked
at before and that, in fact, so many businessmen and others that
were subpoenaed had to spend time and money with allegations or
at least looking at areas that never came to fruition. It was a whole
new investigation, and that is all I can say.
But I do appreciate your comments because, at the time, my re-
action was one of the same. It would not be unusual. I was con-
334
cerned because of the dismissal, though, previously that they all of
a sudden come back.
Mr. Scott. The gentleman’s time has expired.
The gentleman from Massachusetts is recognized for his one re-
maining minute?
Mr. Delahunt. I think it is important that we understand that
this is an important hearing because it does focus on the integrity
of the decision-making process of the prosecutor.
I would like to put aside partisan considerations, irrelevant of
whether it is a Democrat or a Republican, but I think we have to
know and have confidence if we are to reassure the American peo-
ple that the mechanisms, the checks and balances that ensure the
integrity of that decision-making process are working, that they are
effective.
The Ranking Member mentioned the Nifong matter. The state
took action there. He said we ought to be looking at the Duke La-
crosse case. Well, they did. They did that.
I think the issue is: Is OPR properly functioning? I do not know
the answer to that question.
I also want to comment on Attorney General Thornburgh’s obser-
vation about the criminalization of ordinances and county codes, et
cetera. Do we really want to do this? Is this what we intended
when we passed these substantive laws? This is something that
this Committee, Republican and Democrat, has to take a hard look
at.
Mr. Scott. Thank you.
The gentlelady from California is recognized for 5 minutes?
Ms. Waters. Mr. Chairman, thank you.
Mr. Scott. Wait, wait. Excuse me. Ms. Lofgren. I am sorry.
Ms. Lofgren. Mr. Chairman, thank you for recognizing me.
First, I have a letter that has been delivered to us by Timothy
Hawks, the lawyer for Ms. Thompson who was convicted and whose
conviction was overturned and, in response, I would ask unanimous
consent to put that in the record.
Mr. Scott. Without objection, so ordered.
[The information referred to follows:]
335
AITORNEYSATLAW
HQEP
Hawks Quindel Ehuce & Perry, S.C.
700 West Michigan, Suite 500
PO. Box 442
Milwaukee, WI 53201-0442
MILWAUKEE OFRCE
Shareholders
Katherine L. Charlton
Timothy E. Hawks
Thomas Nelson
Lynn M. Novotnak
Barbara Zack Quindel
Israel Ramon
Richard Saks
Daniel R. Schoshinski
Amy L. Shapiro
B. Michele Sumara
Jeftey P, Sweedand
October 10, 2007
414-271-6650
Fax 414-271-S442
Offices also in Madison
Emeritus
Richard Petty
Assoqates
Cocina M. Diat-Suaio
John B. Kiel
Michele A. Peten
Of Coumsel to Firm
Walter F. Kelly
Robert J. Lemet
Howard N. Myers
Vicki Schaut
Daniel L. Shneldman
Honorable John Conyers, Jr., Chair
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Re: The Politicized "Honest Services" Prosecution of a State Employee
U.S. V. Thompson, case no. 06>CR'20 (Eastern District of Wisconsin)
Appeal no. 0€*3576 (Seventh Circuit Court of Appeals)
Dear Chairman Conyers:
I am writing on behalf of my client AFT-Wisconsin (AFT-W) and its affiliate
unions which represent, among others, approximately 6,500 employees of the State of
Wisconsin. AFT-W members are employ^ in a broad, cross-«ection of professional
positions. Their job responsibilities require them regularly to exercise their professional
judgment to decide questions involving large sums of money and affecting
fundamental rights of citizens. The highly politicized federal prosecution and
conviction of Georgia Thompson for mail and wire fraud based on her alleged
deprivation of the public and the State of her "honest services," in violation of 18 U.S.C.
§§1341 and 1346, potentially imposes a profound risk of criminal prosecution on AFT-W
members in the routine exercise of their duties and responsibilities.
Georgia Thompson was a State procurement section chief, which is a civil service
position. In 2005, she presided over a committee selecting a State travel agent to fulfill
the needs of about forty percent of the State' s annual travel budget. The government
prosecuted Ms. Thompson because two executives of tiie travel agency which was
selected each had donated SlOTKK) to the re-election campaign of the Democratic
Governor. The govemmenf s unsupported theory was that Ms. Thompson influenced
the travel contract selection of the Governor's benefactors to gain political advantage for
her supervisors and to ensure her own job security. A jury found that Ms. Thompson
336
Honorable John. Conyers, Jr., Chair
U S. House of Representatives, Committee on the JucJiciary
October 10, 2007
Page 2
had crinvinally steered the travel contract to the winning agency, using a State
administratively-sanctioned procedure seeking the "best and final offer" from the
competing applicants for the state contract. Althougji the winning agency was the low
bidder for the State's contract, members of the selection committee had preferentially
rated other competitors and Ms. Thompson invoked the process to award the contract
to the low bidder.
According to the Seventh Circuit Court of Appeals, which reversed the
conviction, there was no quid pro cpio involved and there was not "so much as a whiff of
a kickback or any similaT impropriety" in the contract choice. Further, there was no
dispute that Georgia Thompson had no knowledge about the travel agents' donations
to the Governor, which had been properly disclosed and reported. Three months after
the decision to award the State travel contract Ms. Thompson received a meager $1,000
raise through normal civil-service processes. The prosecuting U.S. Attorney Steven
Biskupic portrayed this raise as Ms. Thompson's "private gain" from having criminally
skewed the contract award to the Governor's political donor.
As characterized by the Court of Appeals, the government based its prosecution
of Ms. Thompson, on the theory that "any public «nployee's knowing deviation from
state procurement rules is a federal felony, no matter why the employee chose to bend
the rules, as long as the employee gains in the process." Immediately after the Court
heard oral argument, it reversed the conviction and Nfe. Thompson's 18-month senterv:e
and ordered her released from federal prison. A panel of three Court of Appeals judges
issued a blistering opinion that highlighted the paucity of evidence against Ms.
Thompson and the shaky basis of the prosecution. United States v. Thompson, 484 F.3d
877 (7* Cir. 2007) . At oral argument, one judge announced that the government's
"evidence is beyond thin." In its opinion, the Court assailed the prosecution:
The prosecutor' s theory, which the jury accepted, is that Thompson deprived
Wisconsin of her "honest services" - that is, of her duty to implement state law
the way the administrative code laid it down, with only 300 of 1,000 points
apportioned according to price, while 200 pwints were available to the best-
looking or most mellifluous oral presenter, even if Thompson deemed that
allocation silly or coxmterproductive.
[TJhat approach has the potential to turn violations of state rules into federal
crimes. When the Supreme Court reverses a court of appeals, it is apt to say (as
the prosecutor says about Thcsmpson) that public officials have failed to
implement the law correctly. Does it follow that judges who are reversed have
deprived the United States of tiieir honest services and thus committed mail
fraud?
337
Honorable John Conyers, Jr., Chair
U.S. HoTOse of Representatives, Cominittee on the Judiciary
October 10, 2007
Page 3
United States v. Thompson, 484 F.3d at 882.
Like Georgia Thompson, State employees represented by AFT-W daily perform a
myriad of official functions, including administration and oversight of State
government benefits, funds, licenses, as well as oversight of private business in which
^e public has an interest. Their work can unknowingly benefit political friends of their
supervisors and eventually result in their advancement or a raise for their job well done.
The AFT-W affiliate Wisconsin Professional Employees Council, Local 4848
(WPEC) represents approximately 4,750 members employed by various state agencies
in professional fiscal and staff services, such as procurement specialists, accountants,
auditors, financial examiners, revenue agents, tax specialists, licensing examiners and
program coordinators. WPEC member real estate specialists in the State Department of
Transportation acquire and condemn real property and make property value
assessments of such properties. Procurement spedalists and purchasing agents, who
are employed by a number of State agencies, may typically award many state contracts
involving less than $25,000, based on a simplified biddii^ process, They may execute
contracts for larger amoimts without using a Request for Proposal process. In those
circumstances, procurement specialists and purchasing agents exercise their discretion
and profession^ judgment in recommending such contract awards.
The more than 1,500 members of Wisconsin Science Professionals, Local 3732
(WSF) are employed by the State of Wisconsin in occupations related to fishery,
forestry, wildlife, and parks. WSP member hydrogeologists, toxicologists, biologists,
water resource management specialists, waste water specialists, air management
specialists, and others prepare environmental impact statements. These statements are
important factors in the granting of various state permits for construction and
development on lands and waterways within the State. Waste management specialists
employed by the Department of Natural Resources, the Department of Transportation,
and the Department of Agriculture, Trade & Consumer Protection award consulting
contracts through three-person committees. These contracts govern repairs to
contaminated land and are valued up to $250,000.
Many other classifications of employees represented by AFT-W affiliates exercise
their independent judgment and discretioii in ways that have significant economic
impact on citizens and businesses involved in various activities within the State of
Wisconsin. For example, chemists employed by the Department of Natural Resources
are responsible for laboratory certification or registration and effectively issue business
licenses. Revenue field auditors assess taxes owed by entities and have discretion to
reach agreement on tax issues for amounts not exceeding $50,000 in tax per issue.
338
Honorable John Conyers, Jr., Chair
U.S. House of Representatives, Committee on the Judiciary
October 10, 2007
Page 4
Financial examiners audit the records of insurance companies and make decisions
whether capital rations, reserves and liquidity are sufficient to insure the companies'
solvency. Financial examiners employed by the Department of Financial Institutions
exercise their professional judgment to audit state-licensed banks and credit unions to
insure that losses and uncollected credits are properly reported and that banks maintain
a proper ratio between capital savings and capital borrowed. Consumer credit
examiners process licenses, conduct examinations and handle consumer complaints
regarding state-licensed, financial services companies. Slate public defenders negotiate
plea deals for indigent clients who may have some relation, familial or otherwise, with
political donors.
The experience of Georgia Thompson poses unique and limitless risks for these
and other state employees. State employees, like employees in the private sector, have
legitimate and weighty interests in tfieii job security and in the satisfaction of ihieir
supervisors. The government's theory of Ms. Thompson's federal criminal liability,
predicated on an employee's actions "intended to cause political advantage for her
supervisors" and "help her job security," potentially impugns with criminal scienter an
employee's routine, discietionary actions whenever those actions cause significant
public benefits, resources, or funds to redound to a political donor or supporter of the
employee's superior. The sole fact tiiat an affected party is a political donor to an
employee's superior should never by itself create any iiiference that the employee
denied the public and the state her honest services. Such prosecution has a chilling
effect on the daily work of State government due to legitimate employee fears that the
routine performance of their duties may subject them to prosecutorial scrutiny and
potential criminal liability.
Further, the Thompson prosecution \mder wire and mail fraud subverts a
constitutional doctrine that provides immunity to public officials. Such immunity is
designed precisely to protect their ability to exercise their professional judgment in
discretionary acts.
In addition, the context of the prosecution of Ms. Thompson was a dangerous
mix of partisan electoral politics. Following Ms. Thompson's release after four months
in federal prison, the New York Times editorialized tliat U.S. Attorney Biskupic had
"turned a flim sy case into a campaign issue that nearly helped Republicans win a
pivotal governor's race." Biskupic brou^t Ms. Thompson to trial in his jurisdiction in
the Eastern District of Wisconsin (Milwaukee), although Ms. Thompson lived and
worked in state government in the Western District (Madison), In the fall of 2005,
Biskupic publicly announced his ongoing investigation of Ms. Thompson, who was
indicted in January 2006. The trial began that summer and Ms. Thompson was
339
Honorable John Conyers, Jr., Chair
U.S. House of Representatives, Committee on the Judiciary
October 10, 2007
Page 5
sentenced in September, before the gubernatorial election in November. The local press
reports that, during that time, the Republican party spent millions of dollars on
advertising portraying Ms. Thomp>son 2 is a symbol of corruption in the administration
of the incumbent Democratic governor.
Ms. Thompson's excruciating experience highlig^te the need for reform of the
federal wire and mail fraud statutes to clarify and narrow the elements of the crime of
honest services mail fraud. To defend herself and her good name, Ms. Thompson spent
approximately $360,000, exhausting her life savings, losing her job and losing her home.
Law-abiding state employees whose daily work and decision-making potentially puts
them at the same risk should not work in fear tiiat they too will become political pawns
in high-stakes federal, criminal prosecutions serving dubious prosecutorial goals. The
Seventh Circuit addressed the need for law reform:
This prosecution, which led to the conviction and imprisonment of a civil servant
for conduct that, as far as tius record shows, was designed to ptrrsue the public
interest as the employee understood it, may well induce Congress to take
another look at the wisdom of enacting ambulatory criminal prohibitions.
Haziness designed to avoid loopholes throu^ which bad persons can wriggle
can impose high costs on people statute was not designed to catch.
LT.S. V. Thompson, 484 F.3d at 884.
Please enter this statement into ■die record of tiie forthcoming Committee hearing
on this matter. Thank you for the opportunity to address this matter on behalf of the
Wisconsin State employee members ttie AFT-Wisconsin. As an advocate for over
6,500 professional state employees, AFT-W seeks to ervsure that state employees can
perform their jobs and engage in the lawrful exercise of their professional judgmemt
without fear of ambiguous, politically-motivated federal criminal prosecution.
Honorable John Conyers, Jr., Chair
U.S. House of Representatives, Committee on the Judkiary
October 10, 2007
Page 6
Very truly yours,
HAWKS QUINDEL EHLKE & PERRY, S.C.
By
thawks@hqeplaw.com
B. Michde Sumara
msuinaTa@hqepIaw.com
cc:
Andy Gussert, President APT-Wisconsin
Art Foeste, Sr. Vice President, AFT-Wisconsin
Gary Steffen, President, Wisconsin Science Professionals
Steve Phillips, President, Wisconsin State Public Defenders Association
Greg Georg, President, Wisconsin Professional Employees Council
John Schettle, President, Wisconsin Physician & Dentist Association
Jeff Richter, President, Professional Employees in Research, Statistics & Analysis
Timothy E. Hawks
341
Ms. Lofgren. And I just want to raise that issue because when
we started out on this inquiry, I will confess, I thought we were
going to find some ineptness and some bungling. I never really be-
lieved that we would uncover something that looked very seriously
wrong and people who, because they were going to risk their job,
brought prosecutions that should not have been brought.
And then, of course, that brings us to the question: What about
the people who did not lose their jobs? What did they do?
And the case of Ms. Thompson is a pretty stark one. I mean, as
this letter indicates, the Republican Party sent millions of dollars
advertising Ms. Thompson as a symbol of corruption of the incum-
bent Democratic regime, but when her case was heard on appeal,
the appellate court, the Seventh Circuit, described the govern-
ment’s evidence as, “beyond thin,” and described the legal theories
of the prosecution as “preposterous,” and the very day of oral argu-
ments ordered that she be released from custody.
So my question, Mr. Attorney General and Mr. Jones, are you fa-
miliar with another case where the appellate court on the day of
the oral arguments orders the appellant released with this kind of
description of the prosecution?
Mr. Thornburgh. Pretty unusual, I must say.
Mr. Jones. I think it would be extremely unusual.
Ms. Lofgren. Well, it just seems to me it looks not right, and
I would hope — first, let me say, Mr. Attorney General, that politi-
cally we are not aligned, but I do respect your integrity and you
are what we always thought of on my side of the aisle as an honest
conservative and that you would stay here today and speak as you
have in an effort to really, I think, save the country from a souring
and a corruption of the prosecution process is really in keeping
with your reputation as an honest conservative, and I appreciate
it. It cannot be easy to do. I appreciate that you have done this.
And I hope that all of us in the Congress will get a grip. It is
time to stop defending the indefensible and time to clean up some-
thing that appears to have seriously damaged the integrity of the
judicial system, which is core to our free society.
And with that, Mr. Chairman, I would like to yield the balance
of my time to the gentleman from Alabama, Mr. Artur Davis.
Mr. Davis. Thank you, Ms. Lofgren.
Let me turn to another aspect of this case that has raised ques-
tions and ask unanimous consent to introduce a Time magazine ar-
ticle, October 4 of this year, called Selective Justice in Alabama.
Lanny Young, Mr. Jones, you will recall, in addition to Nick Bai-
ley, was the government’s other principal witness against Don
Siegelman. Mr. Young indicated that he had bribed Siegelman and
a number of Siegelman staffers for a number of years.
According to the Time magazine article, which relies on FBI
302s, documents turned over to defense lawyers, in May of 2002,
Mr. Young met with the U.S. attorney’s office, met with individuals
from the Attorney General’s office and made a series of allegations
against Republican officeholders, one of them, one of the senators
from my state, another one, the former Attorney General who is
now a Federal judge.
He indicated that he had laundered campaign contributions for
them illegally. He indicated that he had made contributions in vio-
342
lation of Federal campaign finance laws. Quote from the story,
“Several people involved in the Siegelman case who spoke to Time
say prosecutors were so focused on going after Siegelman that they
showed almost no interest in tracking down what Young said about
apparently illegal contrihutions to Sessions, Pryor, other well-
known figures in the Alabama GOP, and even a few of the safe
Democrats.”
In other words, no matter what Lanny Young said, the only thing
that the government wanted to hear about was that which related
to Don Siegelman. Quote from the story, “It just did not seem like
that was ever going to happen,” that being an investigation of the
others, “said an individual present during key parts of the inves-
tigation. Sessions and Pryor were on the home team.”
One of two things happens here, it seems to me. Either the gov-
ernment did not even look into the allegations against these other
individuals, which raises an obvious question of selectiveness, or
more likely this, they concluded very quickly that Lanny Young
was a liar who could not be trusted, and that what he said about
our senator and our Attorney General had no corroboration, no
proof
I will direct this question to Mr. Thornburgh and Mr. Jones as
a former Attorney General and a former U.S. attorney. Does the
government not have ethical obligations to not put someone on the
stand who appears to be a noncredible witness?
And, Mr. Thornburgh, would you be troubled if the government
brought a case based on someone who had made allegations that
appeared to conclusively be disproved?
Mr. Scott. Can I ask the witnesses to respond briefly? The gen-
tleman’s time has expired.
Mr. Thornburgh. Yes.
Mr. Jones. Yes.
Mr. Scott. The gentleman from Tennessee?
Mr. Cohen. Thank you, Mr. Chairman.
I am concerned about these cases that have been raised, pretty
much so, but I would like to turn our discussion to a case in Mis-
sissippi that Chairman Scott mentioned in his opening statement,
a case that raises serious questions of selective prosecutions.
The Committee has received letters from Mississippi Supreme
Court Justice Oliver Diaz, as well as Mississippi trial lawyer Paul
Minor and Mississippi attorney and former judge John Whitfield,
detailing the facts of their prosecutions in Mississippi. They all be-
lieve these have been politically motivated. And it is mentioned in
Justice Diaz’s letter that John Grisham, a distinguished author,
former member of the Mississippi House of Representatives, has
written a lot about Mississippi in fiction. It looks like something
that is even more scary. It looks like a tale of intrigue, of political
incest in the highest orders and places of the Mississippi Justice
Department, and attempts to get even with folks on the other side
of the aisle.
I would like first to ask unanimous consent that the three letters
that we have received from the justice, the attorney and the former
judge be included in the record.
Mr. Scott. Without objection.
[The information referred to follows:]
343
October 22, 2007
House Judiciary Committee
Dear Committee Members:
I am writing to you because you are the only people who can help me prove that the Bush
Justice Departments prosecution of me and Justice Oliver Diaz, Jr., and Judges Wes Teel
and John Whitfield was politically motivated. I believe we were selectively prosecuted
because of my political affiliation with and contributions to the Mississippi and National
Democratic parties. In order to explain to you why I believe that we were the subject of
selective prosecution as part of what now appears to have been a nation-wide conspiracy
by the Bush Justice Department to dry up funding for Democratic candidates, I must first
give you some background of our case.'
Prior to my prosecution, I was a successful attorney on the Mississippi Gulf coast
specializing in mass tort litigation, including asbestos cases, cases against Bridgestone-
Firestone, Ford Motor Company, and probably most notably, lawsuits against the major
tobacco companies.^ For example, the tobacco litigation generated more than S70 million
dollars in fees for my law firm. 1 was active in both the Mississippi and American Trial
Lawyers Associations. Because my father, Bill Minor, was a journalist and civil rights
activist, I was brought up to take the plight of the disenfranchised and politically
oppressed seriously. As a result of my fathefs influence as a role model, 1 became
actively involved in politics and was cofounder and chairman of the board of the South
Mississippi Legal Services Association for years until it was disbanded in 2002 under the
Bush, Jr. administration.
From 1996-2003, 1 gave more than a half-million dollars to Democratic candidates both
locally and nationally, including a substantial sum to John Edwards so that he could run
for president.
' Roger Shuler, a journalist from Alabama, has for the last month or so written over forty
articles giving a factual and legal account of my case. He sets forth the history and the
bizarre legal rulings of the judge in considerable detail. Anyone who is interested in the
case can read Mr. Shuler's analysis on line at his Internet blog, the Legal Schnauzer. In
addition to providing an excellent analysis of my case, Mr. Shuler has also written
articles on former Gov. Don Siegelmarfs case, Georgia Thompson’s case, and the cases of
others whom the Bush Justice Department may have selectively prosecuted. Mr. Shuler is
an extraordinary example of the unpaid citizen journalist who now exists on the Internet.
I cannot thank him enough for taking the time to interest himself in my case to the extent
of reading the thousands of pages of transcripts and spending the time to research and
analyze on his own the confusing legal issues of my case.
^ Roger Shuler notes that both Don Siegelman and 1 have a'Tascinating connection which
involves a history of taking on the tobacco industry-and coming out on iopV Legal
Schnauzer, ‘Siegelman, Minor, and Tobacco” October 2, 2007. Index 16.
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As a result of the success of the mass tort litigation in Mississippi, in 2000 the U.S.
Chamber of Commerce made a decision to target members of the Mississippi Supreme
Court who were perceived to be anti-business and to elect judges who favored tort
reform. Tn an unprecedented move,^ the Chamber spent more than one million dollars
supporting four pro-business judicial candidates all the while attempting to disguise the
source of its funds. The Wall Street Journal’s Jim VandeHei described the Chambefs
tactic in an article entitledTolitical Cover: Major Business Lobby Wins Back Its Clout
By Dispensing Favors-Snme Members Can Hide Behind ChambefsName to Pursue
Private EndsTargeting 'Unfriendly Judged’, Wall Street Journal, September 1 1, 2001 , p.
Al. The Chamber solicited major corporate funders who had been plagued by class-
action suits, tort liability and other high damage legal awards, and asked them to fund an
elections effort to defeat attorneys general and judges viewed as pro trial lawyer. The
Chamber would cloak the identities of the corporations and would do its best to keep its
own involvement from the public. Public Citizen, Tom Donohue U.S. Chamber of
Commerce President Oversees Renegade Corporations While Pushing for Limits to
Corporate Accountability, Feb. 2005. See also, Scott Horton,‘A Minor injustied’, //order’s
Magazine, October 3, 2007, Index 4.
A particular target of the Chamber was Justice Oliver Diaz, Jr., a Supreme Court Justice
who had been appointed by Democratic governor Ronnie Musgrove to fill a vacancy on
tbe Court. Ads paid for by the Chamber began to appear attacking Diaz for taking more
than $100,000 in trial lawyer donations. Diaz's opponent, Keith Starrett, with the help of
pro-business interests and the Chamber, outspent Diaz by more than $500,000, making
the 2000 judicial election by far the most expensive in Mississippi history at that time.
Diaz beat Starrett; however, by the end of the campaign, he was deeply in debt. 1 played
an active role in raising money to help Diaz retire his campaign debt, including signing
the loan guarantee which became the subject of my later prosecution and that of Justice
Diaz by the DOJ.
Al this point, it might help to understand that until 2003 about half of Mississippi's
Democratic Party money came from trial lawyers. For example, in the 1999 gubernatorial
campaign, Mississippi trial lawyers donated as much to the Democratic candidate Ronnie
Musgrovds campaign as did the Democratic National Committee. Of the $379,500
donated by the trial lawyers, $1 12,000 of which came from me.
In 2001, President Bush appointed Dunn Lampton to be the United Stales Attorney for
the Southern District of Mississippi. Lampton had previously run twice for Congress as a
Republican, but had not been elected. Lampton had been financed in the races by
companies which I had successfully sued, including companies owned or run by
Tampion’s family. In addition, Lampton had supported Starrett in his unsuccessful bid to
unseat Justice Diaz. Lampton himself had pled guilty to violations of FEC rules on
disclosure and reporting.
^ Prior to that time, judicial races in Mississippi had gathered almost no attention or
monetary contributions.
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In October of 2002, just in time for another Judicial election, news leaked to the press that
1, other trial lawyers, judges and Justice Diaz, were being investigated by the FBI and
Lampton’s office for campaign finance violations. Trial lawyers became afraid to
contribute, and candidates were afraid to take their money. As one writer put it, ‘Trial-
lawyer money had become radioactivei’Mcncimer, Stephanie, Blocking the Courthouse
Door, Free Press 2006, p. 109 (Index 2). Pro-business interests were able to seat six pro-
business candidates on the Mississippi Supreme Court.
On July 25, 2003, ninety days before the gubernatorial election, I was indicted with
Justice Diaz and two Gulf coast lower court Judges, Wes Teel, and John Whitfield, on
conspiracy, racketeering, honest services mail fraud and deprivation of honest charges
stemming from loan guarantees I had made to Justice Diaz and the other two judges.
Loan guarantees are not required under Mississippi law to be reported on any disclosure
form.
Dunn Lampton played an active role in presenting the case to the grand jury. The
indictment was signed by Noel Flillman, the then head of the Public Integrity Division,
the same Noel Flillman, who signed the Sicgciman-Scrushy indictment. The indictment
came just in time to be used in the 2003 gubernatorial campaign to unseat Democrat
Ronnie Musgrove in favor of Republican Haley Barbour, the former Chairman of the
National Republic Party, and a successful lobbyist on behalf of the tobaceo industiy-fce
very industry whieh was now having to pay billions of dollars beeause of the lawsuit
whieh 1 and other trial lawyers had been involved in. As we ali now know, Hillman was
rewarded by President Bush for his public service by a scat on the federal bench.
Approval for the investigation was given by then head of the DOJ criminal division,
Michael Chertoff, who was first rewarded by Bush with a seat on the Court of Appeals
and now serves as Secretary of the Department of Homeland Security.
My campaign contributions to Ronnie Musgrove and the fact that the government had
indicted me for'hribing’judges was the subject of television commercials and full page
full color ads which were widely distributed on behalf of Republican candidate Haley
Barbour in the 2003 gubernatorial campaign. (Index 52). In November of 2003, Barbour
was elected governor, and early in 2004, one of his first acts as governor was to call a
special session of the Mississippi legislature which passed legislation effectively wiping
out mass tort litigation and capping noneconomic and punitive damages in almost all tort
cases.
As a result of the 2003 indictment. Justice Diaz was suspended from the Mississippi
Supreme Court while his federal charges were pending, leaving that Court with a 6-2 pro-
business majority. The disappearance of trial lawyer money seriously crippled the
Mississippi Democratic Party. In the 2003-2004 election cycle, the Mississippi
Democratic Party raised only $450,000; whereas, the Republican State Party raised $4
million.
In early 2005, in a trial lasting three months. Justice Diaz was acquitted of all charges. I
was also acquitted on the six charges involving Justice Diaz. The jury failed to reach a
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verdict on other charges against me and against the other two judges. The indictments
allegations that I guaranteed a loan to Justice Diaz in order to gain an unfair advantage
from him were ludicrous from the outset. As the government was well aware. Justice
Diaz recused himself from every case handled by my firm. The only case which Justice
Diaz sat on which even remotely involved me was one involving my father who had been
sued for libel in his capacity as a Journalist by a racist cx-Highway patrolman who had
been paid a half-million dollars by Republic operatives to investigate Bill Clinton in the
now discredited Whitewater investigation. I did not represent my father. The Mississippi
Supreme Court in an 8-0 opinion, joined in by Diaz, affirmed the trial court’s dismissal of
that case. See, Roger Shuler, “Mississippi Churning, Part IX” Legal Schnauzer, September
26, 2007 (Index 22).
As soon as the verdict came down exonerating Justice Diaz, Lampton unsealed a new
indictment against Diaz and his wife for tax evasion. Rather than run the risk of having
both her husband and herself in jail thereby depriving their children of both parents, Mrs.
Diaz pled guilty to tax evasion in return for a sentence of probation. In 2006, Justice Diaz
was acquitted of tax evasion and finally was able to return to the Mississippi Supreme
Court. By indicting Justice Diaz on frivolous charges, the Chamber of Commerce was
able to accomplish what it had not been able to do through the electoral process~a duly
elected Supreme Court Justice was effectively unable to sit on the Court for three years
while those charges were pending against him. Scott Horton in Harper’s suggests that the
purpose of prosecuting Diaz was to keep him off the bench‘4iifting the Mississippi
Courts partisan balance. Seen this way, what the Justiee Department did was an assault
on the political franchise of Mississippi voters and an attack on the States Constitution,
all pursued for partisan political purposes!’ Scott Horton, Harper’s A/ogazme, “A Minor
Injustice: Why Paul Minor?’October 5, 2007 (Index 5).
In the spring of 2007, the other two judges and 1 were retried. I'his time all three of us
were convicted. I was sentenced to serve 1 1 years and to pay fines and restitution in
excess of 4.25 million dollars. The fines, incidentally, were 15 times what the federal
sentencing guidelines called for.
It is important to understand that in Mississippi at the time 1 made the loan guarantees to
the judges, it was not against the law in Mississippi for lawyers to do so. Moreover, it
was common practice for attorneys to make loan guarantees to judges and to appear
before judges to whom they had made political contributions. In fact, one such attorney
who did so was Richard’Dicky’ Scruggs, who is the brother in law of Republican Senator
Trent Lott, who at the time was the Senate Majority leader in Congress. Interestingly,
Lampton hired Trent Lotfs Assistant Chief of staff as his own chief of staffihereby giving
Lott, and possibly the White House, access to the investigation and prosecution.
In addition, at the beginning of the investigation into my campaign finance activities,
special FBI Agent Matthew Campbell, a forensie accountancy expert, was in charge of
the investigation. When he questioned why Seruggs was not also being investigated, he
was removed from the investigation and transferred to Guantanamo Bay. See, Scott
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Horton.“A Minor Injustice: Why Paul MmoxT Harper’s Magazine, Oct. 5, 2007 (Index
5).
Special Agent Kevin Rust was plaeed in charge of the investigation despite his personal
contributions to Keith Starretfs failed Judicial campaign against Justice Diaz. Scott
Horton of Harper 's Magazine reports that under the FBfs own ethical restrictions, Rusfs
conflict of interest should have disqualified him from the investigation. Instead, however,
he led it. The Biloxi Sun Herald quoted Trent Lott as acknowledging that he had had
diseussions with prosecutors involved in Scruggs case. Later, however, he claimed that
his comments were a“mistake7 Scott Horton,‘A Minor Injustice: Why Paul Minor?’
Harper 's Magazine, Oct. 5, 2007 (Index 5).
In any event, Seruggs was not prosecuted although he did the same thing which I was
convicted of Scruggs, however, had contributed $250,000 to the Bush-Cheney
presidential campaign and GOP in 2002. The Federal Election Commission Report of
September 1 4, 2000, shows that Scruggs and his wife gave over $500,000 to various
Republican causes. Scruggs also guaranteed a $500,000.00 loan to Republican Lieutenant
Goveemor Amy Tuck. Tuck was a leader in the effort for tort reform. Scott Horton, ‘A
Minor Injustice: Why Paul MmoxT Harper's Magazine, Oct. 5, 2007 (Index 5).
In other words, when the Republican led Justice Department looks at my contributions to
Democrats, they see fraud. When they look at Scruggs' donations to Republicans, they see
no crime at all. Scruggs’ immunity' from prosecution might be explained if he had been
offered some form of amnesty by the government for his cooperation in the investigation
against Minor, but Scruggs and the U.S. Attorneys office denied Scruggs received
favorable treatment in return for cooperation. Scruggs, in a moment of truth, at the trial
denied he needed it. ~
Moreover, former Chief Justice Ed Pittman, who was a sitting Mississippi Supreme Court
justice in 2000 was the beneficiary of a loan guarantee from me. Justice Pittman, was not
indicted, but Justice Diaz was. Justice Pittman, however, was pro-tort reform. Justice
Diaz was perceived by the Bush Justice Department as anti-tort reform (Index 19).
Roger Shuler, in the Legal Schnauzer, "Mississippi Churning, Part Xll, " October 1, 2007
(Index 19), that double standards seem to apply to Supreme Court Justices who are
conservative and advocates of tort-reform. He cites a case where Archie Wayne Courtney
won a $1.8 million dollar judgment from a bank. The Mississippi Supreme Court reduced
the award to a mere $45,000.00. The opinion was authored by conservative, tort-reform
advocate Chief Justice James Smith. Courtneys attorney filed a motion for rehearing after
learning that Smith’s campaign committed had borrowed $55,000.00 from a bank that was
part of the same chain Courtney had successliilly sued. For some inexplicable reason, the
Bush Justice Department sees fraud regarding Justice Diaz and me although he did not sit
on my cases, but does not see it in the case of Justice Smith although he not only sat on
the case, but actually authored the opinion. Shuler also points to another case where two
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Supreme Court Justices sat on a ease even though the opposing party had made political
contributions to their campaigns (Index 19).
Over the past few months, it has become increasingly clear that Karl Rove, political
strategist for Bush and other Republicans, conceived a strategy to dry up political money
to Democratic candidates which included using the Justice Department as an instrument
to prosecute prominent Democrats, particularly trial lawyers.'* What this Committee must
ask itself in the pursuit of truth is can it be coincidence that nearly every major attorney
donor to John Edward^ campaign has been prosecuted by the Bush Justice Department?
See, Richard Opel & Glen Justice,“Cteveloping the Strategie^’Fund Raising ? York
Times, July 26, 2005, The Times points out that I was the tenth largest donor to Edwards
with donations totaling $129,000 and that almost ever>' major attorney contributor to
Edwards has been the target of an aggressive DOJ investigation. In my case, in January
of 2003, 30 FBI agents raided my law office under the pretext of obtaining documents
regarding the judicial investigation and seized all of my documents and financial records
regarding contributions and fund raising efforts on behalf of the state and national
Democratic Party-h particular those regarding John Edwards. As a result, my family and 1
have been threatened with an indictment for campaign finance violations.
Can it be coincidence that the prosecutions of other Democrats, including Don
Siegelman, former governor of Alabama, and Georgia Thompson, an innocent Wisconsin
public servant, were timed to coincide with hotly contested political campaigns in
violation of the Justice Departments own internal operating guidelines which require the
department to avoid such an appearance of impropriety? Adam Cohen of The New York
Times, notes the timing of the prosecutions in an editorial dated October 1 1, 2007, and
suggests that the charges against Gov. Siegelman, Georgia Thompson, and me may have
been‘lattempts to use the Justice Department to gel Republican governors elected!’ (Index
1 ).
Can it be coincidence that United States Attorneys who had given loyal and honest public
service to this country were fired in what has now been disclosed as a concerted plot to
rid the Justice Department of people who were not'loyal Bushie^’and that that plot was
orchestrated again by Karl Rove and came directly from the White House?
Questions such as this are being asked all over this country by the press and honest
citizens of this country are deeply distressed by the notion that the government could
engage in selective political prosecutions of its citizens. This Committee, and only this
Committee, can obtain answers to these que.stions which need to be answered in order to
restore faith to those citizens that their government will not .stand for such behavior by its
public servants whether they are United States Attorneys or the President of the United
States and his highest advisors.
1 was convicted on vague charges that 1 obtained an “unfair advantagd’ffom the two judges
who sat on two cases years after 1 made the loan guarantees. 1 should note that during the
See, Schuler, "All Roads Lead to RoveJ’Indcx 42.
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interval, my firm could have brought hundreds of cases before those very same judges
but did not. From the outset, the U.S. Attornej^s office announced that it did not intend to
prove that there was a“quid pro qud’ involved because of the guarantees. This is so despite
the Justice Departments own guidelines which dictate that it be able to do so before
bringing such charges against lawyers and Judges. Scott Horton in an article entitled‘A
Minor Injustice: Why Paul Minor?’published in Harper’s, October 5, 2007 (Index 5),
points out that“[s]everal public integrity prosecutors with whom I conferred told me they
[the charges] were unfamiliar of any similar case raising charges quite like these. They
were called ‘strange,’ and ‘perhaps uniqud’in failing to allege a‘4uid pro quoi’Horton points
out that Adam Liptak of the New York Times observed on March 15. 2004:‘The central
charge against the two men is so convoluted that setting it out requires a diagram ... 7
In fact, the jury in our case was instructed that the government need not show a“quid pro
qud’in order to convict. In other words, the government was not required to show that the
judges were'bribed!’ Astonishingly, the jury was told that“You may find specific criminal
intent even though you may find that the rulings were legal and correct, that the official
conduct would have been done anyway, that the official conduct .sought to be influenced
was lawful and required by law, and that the official conduct was desirable or beneficial
to the public welfare,” as quoted in Roger Shuler, “Mississippi Churning, Part NY,’ Legal
Schnauzer, September 20, 2007 (Index 28).
In the first trial, the trial judge allowed us to present evidence showing that the rulings
made by Judges Teel and Whitfield in the two cases were grounded in the law and thee
facts. However, in the second trial, the rules had changed, and we were not allowed to
show that the results of the two eases were legally justified and that the suits were
meritorious. See. Roger Shuler.‘Mississippi ChumingPParts VII and VIII, Legal
Schnauzer, September 24 and 25, 2007 (Indices 24 and 23) for an analysis of why the
rulings by Teel and Whitfield were correct.
Furthermore, I was not allowed to show, as I had been in the first trial, that over the years
1 had made loans or guaranteed loans to other people, including lawyer friends, so that
making the loan guarantees to my friends was not unusual or done corruptly. In short,
from the first trial to the second trial, the trial judge had changed the rules dramatically-K)
our detriment.^
One might well wonder why the dramatic turn around by the judge. Horton in his October
5, 2007, Harper’s article describes the judge’s conduct as“aberrational!’(Index 5). I
contend that the explanation of the judge’s strange rulings may lie in the fact that while
the second trial was pending, the Bush White House was considering whom to appoint to
the Fifth Circuit Court of Appeals from the State of Mississippi and that Judge Henry T,
Wingate, the trial judge in our case, was a likely candidate for that appointment. By now,
it is no secret that only‘1oyal Bushics’nccdcd to apply for political appointments of any
kind.
’ Roger Shulefs blog, the Legal Schnauzer, discusses the rulings in some detail.
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Judge Wingate, is the first and only Black judge appointed to the federal bench from
Mississippi. He was appointed by a Republican President. At the time of the second trial,
the Bush White House was under attack by civil rights groups and others for nominating
several white candidates from Mississippi for judgeships on the Fifth Circuit. Those
persons had experienced confirmation difficulty. During the second trial, there was
considerable pressure to appoint a Black from Mississippi for a judgeship on the Fifth
Circuit. In short, Judge Wingate had considerable incentive to curry favor with the Bush
White House during the second trial proceedings. For whatever reason, the judgds rulings
were of considerable assistance to the government in our prosecution.
For example, I filed several motions alleging selective prosecution and requesting that the
United States Attorneys office be recused from the case because ofU.S. Allomey Dunn
Lamptorfs involvement in securing the indictment against me^ and in prosecuting the
case. I had sued Lamptorfs famiiys companies successfully obtaining large monetary
awards against them and in addition, had helped finance Justice Diaz’s judicial campaign
against I,amptorfs good friend Keith Starrett. Despite, clear precedent requiring Lamptorfs
office to recuse themselves from my case. Judge Wingate refused to rule on the recusal
motions. Furthermore, he refused to rule on my motions alleging selective prosecution
because of my political activities and refused to allow my trial attorneys access to
government which might have proved my claim of selective prosecution. In short, unless
this Committee helps me, and the other defendants similarly situated, gain access to the
files, in all likelihood we may never be able to prove what happened to us.
Please help us. If the Justice Department has done nothing wrong and our prosecutions
were not directed improperly by political operatives in the White House, then why is the
Department so reluctant to give Congress the information it seeks? If the prosecutions
were the result of political persecution, then the country as well as the defendants need to
know so that this wrong can be righted. Help us please to find the truth.
1969, 1 volunteered to fight in Vietnam and was awarded the Bronze Star for my service.
I love my country, and I have faith that its good people and the institutions of its
government will in the end win out over those who have sought to destroy our justice
system if the truth can be revealed.
Sincerely yours,
s/Paul S. Minor
Paul S. Minor
c/o Julie Ann Epps
504 E. Peace Street
Canton, MS 39046
(601)407-1410
Despite Lamptorfs conflicts, the grand jury transcripts reflect that Lampion presented
the case to the grand jury.
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SUPREME COURT OF MISSISSIPPI
POST OFFICE BOX 117
JACKSON, MISSISSIPPI 3B205
TELEPHONE (601) 359-3697
E-fn^: )dlu4mMc.sttie.n>ft.u»
OUVER B CHA2. JR.
PRE8I0INQ JUSnCC
October 22, 2007
Honorable John Conyers Honorable Lamar S. Smith
Chairman of the House Judiciary Committee Ranking Member House Judiciary Committee
United States House of Representatives United States House of Representatives
2426 Rayburn Building 2184 Rayburn Building
Washington, DC 203 1 3 Washington, DC 203 1 3
Dear Chairman Conyers and Congressman Smith,
My friend, John Grisham, has made a comfortable living telling talcs of political and legal intrigue
set in our home state of Mississippi. However, the story I am about to tell docs not spring from the
fertile mind of a fiction writer. Instead, it is all too real, and I am afraid was hatched by politically
corrupt employees in the United States Department of Justice and elsewhere. I fully understand the
gravity and ramifications of the charges 1 have leveled and do not do so lightly, but have done so
upon sober reflection and forethought. Thank you for allowing me this opportunity to tell my
incredible story and to share the facts that form the basis of this saga.
As a Supreme Court Ju.sticc for the .state of Missis.sippi, I have devoted my legal career to the fair
and impartial administration of justice. It is my sincere belief that our system of jurisprudence has
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been the standard of justice for all others to emulate. Five years ago I would never have believed
that 1 would be saying the things 1 am about to say. However, my perspective in this matter comes
from having been indicted, tried, and fully acquitted, not once, but twice. And my prosecution was
led by a U. S. Attorney who had a personal and political iiitcrcsl in seeing to it that my co-defendants
and I were convicted.
BACKGROUND FACTS
Strangely enough, 1 think that the best place to begin my story is at the end of my first trial. After
hearing a jury fully acquit me of a multi-count bribery and mail fraud indictment, the United States
Attorney for the Southern District of Mississippi, Duiuiica Lampion, amazingly admitted
“I knew we would have a problem on [prosecuting] Diaz because he didn’t vote on anything,” In
other words, in order to put the best face on an embarrassing courtroom defeat, the United States
Attorney admitted to all watching that he never really had much of a case against me from the
beginning. He was admitting that there was never anything to his bribery allegations becau,se I had
never participated in a ca.se in which the attorney accused of bribing me was involved. At the end
of a three and a half year investigation and having just gone through a three month trial in which I
faced ninety-five years in federal pri.son and millions of dollars in fines, I was stunned. After all, this
is the point I had been making for years, and yet the prosecution and the trial proceedings continued.
Despite this admission, the generous mood of the U.S. Attorney did not last. Three days later he
unsealed another indiclmcni against me,
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So, how did I get to the point of being the first Supreme Conn Justice in the state of Mississippi to
be indicted? In 1987, I was elected as a Republican to serve in the Mississippi State Hou.se of
Representatives from my hometown of Biloxi. 1 frequently worked across party lines with many
groups and began to get a great deal of support from tlie Democrats I served with and with many
Democratic leaning groups. In 1 994 1 ran for a judicial post on the Mississippi Court of Appeals and
won. Judges in Mississippi are non-panisan and since that time I have not been associated with any
political party.
The beginnings of this case can be traced back to March of 2000 when I was serving as ajudge on
the Mississippi Court of Appeals. When a death created a vacancy on the Mississippi Supreme
Court, 1 wa,s appointed by Governor Ronnie Musgrovc (D) to serve out the remainder of that term
and to stand for election in November of that year. I agreed, knowing the difficulty presented by
serving on the Coun and putting together a campaign in a very short period of time. However, I
knew that 1 could rely upon past supporters such as trial lawyers, labor unions and others who had
previously worked with me and were familiar with my record. One person 1 knew that 1 could rely
upon was my old friend Paul Minor who was always active in his financial and moral support of
Democratic causes and candidates. But, what we did not know at the time was that the 2000 election
for the Mississippi Supreme Court would be like no other judicial election in the history of
Mississippi.
My opponent in the election was a trial judge by the name of Keith Starrett. Slarrctt is from
southwest Mississippi and was a long time friend of Dunnica Lampton. Lampton .actually hired
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Starrelt as an associate prosecutor and the two worked together until Starrett left for the trial bench.
Lampton also left the prosecutor’s office in 2000 and unsuccessfully ran for Congress as a
Republican,
The 2000 election for the Mississippi Supreme Court quickly became a heated one. While judicial
elections in Mississippi are non-partisan, I was supported by Democratic leaning groups and Starrett
was supported by Republicans. The election proceeded as expected until two weeks prior to election
day. At that time, millions of dollars in unreported outside money came pouring into Mississippi.
The United States Chamber of Commerce launched a surprise attack to assist candidates they had
endorsed and to defeat others. I was targeted for defeat and became the subject of a massive negative
advertising campaign. At the same time, Starrett benefitted from positive advertising supporting his
candidacy. The advertising campaign included television, radio, direct mail, and telephone calls,
t he Chamber refused to comply with Mississippi campaign finance laws by revealing the source of
the contributions. Mississippi state election officials actually went to court to force compliance with
state law. Injunctions were issued to prohibit the illegal Chamber ads. The Chamber sought an
emergency appeal with United States Supreme Court justice Antonin Scalia, who in an unusual
single Justice order, vacated the injunctions and allowed the Chamber ads to run. The Chamber went
to Scalia without even presenting the matter to any lower appellate court, instead going directly to
the United States Supreme Court.
Because of this ruling, and in order to compete with the Chamber. I needed to raise a great deal of
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money in n very short period of time. I immediately turned to my loyal supportertt who suggested
that the quickest way to raise that kind of money would be through a bank loan. Richard "Dickie”
Scruggs and Paul Minor each agreed to guarantee bank loans so that my campaign could remain
competitive. Minor guaranteed a loan for $73,000 and Scruggs guaranteed a loan for S80.000. This
infusion of cash allowed me to respond to the overwhelming Chamber advertising campaign.
Because of these loans I was able to maintain my lead and win the election.
After his loss, Starrett returned to the trial bench. However, Lampton who was unsuccessful in his
congressional race was out of a job. But that did not last long. A few weeks later, George W, Bush
nominated Lampton for United Stales Attorney for the Southern District of Mississippi. Months
later Bu,sh nominated Starrett to serve as a federal district court judge.
The bank loans were paid off a year after the election. Scruggs paid off the $80,000 loan himself.
Minor succe.ssfully sought donations from others to help pay off the $73,000 loan. All debts from
the 2000 election were paid.
Minor continued his suppon of Democratic candidates and causes. In 2002 he was listed as one of
the ten largest contributors to John Edwards. Scruggs on the other hand contributed $500,000 to
Bush-Chency and the Republican Pany. It was sometime during 2002 when federal investigators
began looking into the financial records of Paul Minor. Federal agents showed up at The People's
Bank of Biloxi where Minor banked, demanding to sec all of his financial records.
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Shortly thereafter, media reports began to appear locally that a federal investigation was underway
and it was looking into loans to judge.s that were guaranteed by Paul Minor at The People's Bank.
It was reported that a federal grand jury had been convened and that it was investigating corruption
in the Mississippi judiciary.
In October 2002 rumors were flying and many were concerned about the scope of the investigation.
At this time, it was reported that the United Slates Senator from Mississippi, Trent Lott, stated that
he had called federal investigators and was assured that his family members were not subjects of the
investigation, Lott happens to be the brother-in-law of Richard “Dickie” Scruggs. The fact that Lott
would feel comfortable enough to call federal investigators and inquire about an on-going
investigation is an amazing admia.sion. When qucsciuiiud about this later, Lott denied that it had
occurred.
Despite numerous conflicts and the appearance of a partisan investigation, the grand jury proceedings
continued and on July 25, 2003 an indictment was handed down. It was trumpeted in a press
conference called by Lampton. Indicted were Paul Minor, Oliver Diaz, Jennifer Diaz, John
Whitfield and Walter W. “We.s" Teel. Jennifer Diaz is the wife of Oliver Diaz and Whitfield and
Teel were state court trial judges who had also received campaign loans guaranteed by Minor, The
charges were bribery and mail fraud related to campaign loans guaranteed by Minor to the judges.
Minor wa.s also charged with racketeering.
The defendants appeared in federal court and entered picas of “not guilty.” The ca.se was a.ssigned
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to federal district judge Henry Wingate and various pretrial motions were filed. Among the motions
filed were motions to dismiss for selective prosecution and for the recusal of Lampion. Wingate
promised quick rulings on these motions but over a year and a half passed without any word from
the judge. It was only on the eve of trial that Wingate denied the motions without written order.
Jury selection for the trial finally began in March of 2005. A jury was seated and the trial began in
May. The trial continued through the summer and in Angus! 2005 the Jury returned a verdict. I was
fully acquitted and Minor was partially acquitted. The jury could not reach a verdict on the
remaining charges.
Onr celebration did not last long. Three days later, Lampton unsealed another indictment against
me. this time for tax evasion. He also announced that he would retry the remaining defendants.
1 was tried again in April of 2006 and was again fully acquitted. The remaining defendants were
retried in March of 2007 and were convicted. Minor was sentenced to eleven years in federal prison
and fined nearly $4,000,000 in fines. This fine is more than fifteen times the amount recommended
in the Federal Sentencing Guidelines. Whitfield was sentenced to nine years in federal prison. Teel
was sentenced to five years in federal prison. Jennifer Diaz was coerced into pleading guilty to one
count of tax evasion and was sentenced to two years of supervised probation. I have returned to my
po.sition on the Mississippi Supreme Court.
THE IRREGULARITIES
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Given this background, which is troubling enough. I will now point out the facts that bring this case
outside the realm of an ordinary federal criminal pro.secution and into the realm of a prosecution
based upon improper political considerations and for purely partisan motives.
The seminal question that must be asked is why did an investigation into the finances of Paul Minor
even begin? Further, why would the federal government spend millions of dollars and dedicate
extraordinary investigative resources focused on Minor? Remember, this is not a case where a crime
was committed and investigators were dispatched to solve the crime. This is not even a case where
a complaint was filed and investigators began looking into possible wrongdoing. Instead, this is a
case where federal prosecutors decided to look into the financial activities of a specific citizen in an
attempt to see if those transactions could be consuucd as a federal offense.
In 2002, Paul Minor was one of the ten largest donors to the campaign of John Edwards. Also,
Minor wa.s the largest single donor to Democratic candidates in the entire state of Mississippi.
Media reports have indicated that during this time period federal investigators began looking into
the financial dealings of major donors to the John Edwards campaign. It is precisely this time period
when federal investigators entered the People’s Bank of Biloxi, Mississippi and demanded to see the
banking records of Paul Minor, For this reason alone, this investigation was suspect from the
beginning and could be deemed a purely political witch hunt into the financial dealings of a major
Democratic pany donor. However, the irregularities do not end here.
To head up the Mississippi investigation, the partisans in the Department of Justice looked tn the
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U.S. Attorney in south Mississippi. Dunnicu Lamptnn Now, Lampton wa.s no stranger to partisan
Republican party politics, having twice tun as the Republican nominee for the Fourth Congressional
District of Mississippi, and having been twice defeated. Lampton lost the 2000 election to Ronnie
Shows, who was financially .supported by Paul Minor. During this election, Lampton received
financial support from traditional Republican donors including lobbyist Haley Barbour, who
represented Lorillard Tobacco, Brown & Williamson, and the Loews Corporation. All corporations
successfully sued by Minor in the national tobacco litigation.
However, Lampion’s familiarity with Paul Minor is not only political it is also personal. Ergon, Inc.
Is a Mississippi corporation that is ranked on the Forbes list of 500 top private corporations in the
United States, Ergon is a family owned business and is owned by the Lampton family of
Mississippi. As an attorney representing injured people. Minor has successfully sued the Lampion
family business, Ergon, and has recovered millions of dollars in damages on behalf of his clients.
In fact, in July 2UU2, about the time this investigation began, Paul Minor entered an appearance on
behalf of his clients against Ergon. The suit was later settled for several million dollars. This fact
alone presents a serious conflict of interest for lampton.
If this were not enough, Minor also supported me in my campaign for the Mississippi Supreme
Court. 1 ruled against Lampton in several ca.scs while .serving as a judge on the Mississippi Court
of Appeals, See First Southwest Corp. v. Dudley F. Lampion, among others. I was opposed by
Keith Siarrett, a family Iricnd and former assi.stant of Lampion's. Starrelt’s secretary is Donna
Lampton, a close relative of Dunnica Lampton. Due in large part to the l.nst minute financial
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360
assistance of Minor, I won. Lampion then u.sed this election support as the basis for his federal
indictment against me and Minor. He appointed FBI Special Agent Kevin Rust to lead the
investigation. Amazingly, Rust wa.s a financial contributor to the campaign of Keith Starrett in his
contest against me. Another major conflict, and evidence of the political nature of this prosecution.
But, what about the charges in this case? One could argue that even if this case wa.s begun for
political reasons and even if the case proceeded because of a biased prosecutor, if a federal crime
was committed then no harm has been done, 1 hercforc, an analysis of this case is not complete until
we look at the specific charges.
On July 25, 2002, a federal grandjury returned an iiidictiiient against Minor, myself and three others.
The indictment stems from bank loans guaranteed by Paul Minor for me and two other judges. The
indictment alleges that because Minor guaranteed campaign loans and eventually paid off these
loans, the federal crime of bribery had occurred. Additional counts of mail fraud were alleged
because of the paperwork associated with the filing and reporting of these loans Minor was charged
with the additional count of racketeering, a charge usually reserved for organized crime.
The defendants all pled "not guilty” and filed various motions challenging the indictment, alleging
the political nature of the prosecution and setting forth the many conflicts of interest in this case.
The prosecutors did not reply to these charges but in.stcad re.sponded by seeking a superceding
indictment adding charges of ezlorlion to Minor and me. The defendants requested a hearing on the
motions but that request was denied and the motions were summarily dismissed on the eve of trial.
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361
The prosecution has not to this day been required in answer any of these charges.
And so, the question now becomes, is it illegal for an attorney to guarantee loans to the election
campaigns of judges in Missis-sippi? Based upon these indictments you would think that would be
the case, but the answer is that it is not. It is perfectly legal for attorneys to contribute to the political
campaigns of judges. In Mississippi, judges are elected by popular vote. Judges are allowed to
receive campaign contributions from attorneys who practice before them. Until recently, there were
no limits on the amount of contributions to judicial campaigns. And, there is no prohibition on
attorneys guaranteeing loans to judicial campaigns.
However, the loans could in fact have constituted bribery if it could be shown that the loans were
provided in exchange for rulings by the judges for which Minor was not entitled. So, how did
prosecutors show that the rulings of the judges were not the correct rulings? In my case the
prosecutors had a major problem. I never voted on any case involving Paul Minor or his firm,
recusing myself in each instance. Not surprisingly, I was fully acquitted by the jury because of this.
However, Whitfield and Teel had each ruled on one of Minor’s cases. So, how would prosecutors
show that the rulings on these cases were not correct?
Incredibly, they did not even attempt to do so. Because they could not show that the rulings were
not correct, prosecutors argued that the simple existence of the loans coupled with rulings by the
judges equated to federal bribery.
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Prosecutors had the additioital benefit of a Republican appointed trial judge in Henry Wingate.
W ingate presided over the first trial of this ease in which a jury acquitted on some charges and could
not teach a verdict on others. Amazingly, Wingate changed many of his rulings from the first trial,
ruling c.sactly opposite on many questions. One of the more significant rulings was that prosecutors
did not have to prove a "quid pro quo" in this case. A "quid pro quo" is a basic requirement in any
bribery trial and Wingate’s ruling on this issue sealed the case for the prosecution. This was clearly
error and one is left to wonder why the judge changed his rulings.
In another instance, prosecutors actually offered a Jury instruction that said that the defendants could
be found guilty "even though you find that the rulings were legal and correct, that the official
conduct would have been done anyway, that the official conduct sought to be influenced was lawful
and required by law, and that the official conduct was desirable or beneficial to the public welfare."
Wingate allowed this instruction. With vague charges by prosecutors and rulings like these from the
trial judge it is no surprise that the second jury was able to convict.
So, what about charges of selective prosecution? You might think that it was enough that Minor was
singled out for scrutiny and that he faced vague charges t>f bribery and corruption, but was Minor
the only person engaged in this conduct? Incredibly, again the answer is no. During their
investigation, prosecutors discovered that it was indeed a common practice for attorneys to guarantee
campaign loans to judges. In fact, investigators discovered that other attorneys had guaranteed
campaign loans to judges in this very case. One attorney who did so was Richard "Dickie" Scruggs
who had guaranteed an $80,000 campaign loan for me. Again, it is not illegal for attorneys to
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guarantee loans to judges and Scruggs did nothing wrong. However, he did the e.sgct thing for w hich
Minor was being prosecuted and prosecutors were fully aware of his conduct. Therefore, we are left
to wonder why the different treatment for Minor? The answer seems to be because of his support
for Democratic candidates and causes. Fuitlicr, other judges had secured loans from Minor for their
campaigns. These judges were not prosecuted even though they did not recuse themselves from
Minor's cases and even though they mled in his favor. "Why a different treatment for these judges?
It seems that if the judges were conservative enough they were not prosecuted. Again, the
prosecution comes back to politics.
CONCLUSION
In a speech to federal prosecutors, on April 1, 1940, former Attorney General of the United States,
Robert H, Jackson said:
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants, Therein
is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get,
rather than pick cases that need to be prosecuted. With the law hooks filled with a great assortment
of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on
the part of almost anyone. In such a case, it is not a question of discovering the commission of a
crime and then looking for the man who has commiticd it. it is a question of picking the man and
then searching the law books, or putting investigators to work, to pin some offense on him. It is in
this realm— in which the prosecutor picks some person whom he dislikes or desires to embarrass,
or selects some group of unpopular persons and then looks for an offense, that the greatest danger
of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real
crime becomes that of being unpopular with the predominant or governing group, being attached to
the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
Today, some sixty-.seven years later, Jackson’s words are eerily prescient. He was able to foresee
the potential for abuse that could be done by an unscrupulous prosecutor. Unfonunatcly, his
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wiimings were accurate and have come lo fruition in this very case. Even worse, the problem was
compounded in this case w’hen the trial judge who should have acted as a moderating force on the
prosecution, completely abdicated his role. The result is that United States citizens have been
prosecuted for purely partisan political reasons.
As a result of political persecution, three irmocent men in Mississippi have been sentenced to lengthy
terms in federal prison. They were selected for prosecution based solely on their political activities.
They were subjected to vague charges of corruption which were impossible to defend against. They
were prosecuted when others who had done the same things were not. They have been vilified,
demoralized and financially bankrupted. And worse, this has all been done in the name of the
government that these men have loved and served.
My fear is that in this case we are able to see, in the words of Jackson, “the greatest danger of abuse
of prosecuting power.” My faith is that this committee will seek answers to the troubling questions
that have been raised by the prosecution of Democrats by a partisan Republican prosecutor in
Mississippi. It is only when we have answers lo these questions that wc can begin lo restore the trust
that has been breached by political operatives who have hijacked our Department of Justice,
Again, thank you for allowing me the opportunity to be heard. It is indeed comforting to know that
the pursuit of ju.stice is being advanced by the work of this committee. The wisdom of our founding
fathers and their system of checks and balances can be seen in your labors today. Your efforts and
inquires into the possibility of political corruption in the United States Department of Justice will
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go a long way to restoring niir Tnith in our system of jurisprudence and i;
‘■justice for all.”
Sincerely,
Oliver E. Diaz, Jr.
Presiding Justice
Mississippi^preme Qj^rt
fulfilling the promise uf
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366
July 23, 2007
Honorable John Conyers
Chairman of the House Judiciary Committee United States House of
Representatives
2426 Rayburn Building
Washington, DC 20515
Honorable Patrick Leahy
Chairman of the Senate Judiciary Comirdttce United States Senate
433 Russell Senate Office Building
Washington DC 20510
Re : Prosecutorial Independence/Selective Prosecutions
The Politicizing of Department Of Justice Dear Congressman Conyers and
Senator Leahy:
It is with great interest that I read the articles regarding your
Committees' investigations into the alleged "politicizing" of the
Department of Justice. I have a personal interest in the subject as I
am one of the defendants that has had my professional life ruined
because of partisan politics and the determination of this
administration to establish political control of all facets of the
government, local/state/federal; judicial/legislative/executive; ^
agencies/departments/commissions of government Like the case against
former Governor Sicge.lman of Alabama, the Department of Justice in the
Southern Division of Mississippi has used its resources ro persecute
and prosecute key democratic donors and politicians in an effort to
establish the much desired control and to ensure that "tort reform"
protects the corporate interests of the governing party.
In Missi.ssippi, Jim Herring, the head of the state Republican Party,
called for Democratic Gov. Ronnie Musgrovc to return $183,517 in
contributions Minor and his Biloxi law firm have given Musgrove over
the past 16 years. Musgrove won a state Senate seat in 1987, became
lieutenant governor in 1995 and v/as elected governor four years later.
See the attached copy of The Clarion Ledger June 30, 2003 article
entitled "Diaz case adds fuel to e.lection campaigns"
[ http; / / W WW . clarion ledger ♦ com/news/0307/30/m01eleca . ntml
<outbindT//14/ (http: //www.clarionledger .com/riews/0307/30/m01eleca.html>
) .1
For over four (4) years my co-defendants and I and our attorneys have
been trying to make others aware of the abuses of the Department of
Justice and the selective prosecution that was our prosecution and
trial. To give credibility to my position I enclose for you a copy of
the letters I sent my representatives in 20042 on this issue along with
the referenced attachments. As I was then, 1 will be now, open and
honest. When I sent my letters in 2004 I was one of the accused. Today
I stand convicted of federal charges that stemmed from the politicizing
of the Department of Justice. Said politicizing and the use of that
office to gain political control of the State of Mississippi's
executive, judicial and legislative branches has resulLed in grave
injustices, my co-defendants and I are now convicts facing sentence,
guilty only of what at their worst were ethical violations. As
prosecution witness Richard Scruggs testified at the 20073 re-trial, he
too had engaged in the same type of conduct for which I and m.y co-
367
defendants were convicted, yet Mr. Scruggs has not been prosecuted. Mr.
Scruggs is the brother-in-law to U.S. Senator Trent Lott and a
prominent trial attorney. (See the enclosed portions of the daily copy
trial transcrlDt of Scruggs' testimony enclosed herein. 4) To provide
you with a brief history, from 1995 to 2000, I was a state court judge
(Second District Circuit Court), the younge-st elected to serve in
Harrison/Hancock/Stone Counties of Mississippi. During my tenure I was
one of the few black judges to hold the bench and after my retirement
in 2000 in an effort to give racial balance to the judiciary, my name
was mentioned as a potential nominee to the federal bench and even for
the U.S, Attorney post. While on the bench my policies were considered
liberal by some, Mr. Lampton, the U.S. Attorney, being one. Mr.
Lampton, the U.S. Attorney that instigated, pursued, sought the
indictment and prosecuted my case, shares that view as he looked me in
the eye and told me during the initial interview that i would not be
involved in the m.atter it I "had not been so liberal while on the
bench." I retired fromi the bench in 2000, long before the beginning of
the investigation that resulted in my indictment and subsequent
conviction ,
The U.S. Attorney responsible for the investigation and the subsequent
indictments and conviction, Dunn Lampton, unsuccessfully ran for
Congress on the republjcan ticket in T998 and 2000. The attachment to
my 2004 letLers, the Conflicts of Interests Outiine that is enciosed
herein, sets forth various blatant ethica.l breaches and political,
social, familial and personal conflicts of interests that U.S. Attorney
Dunn Lampton had relative to the prosecution of my case. He has family
members that were successfully sued by my co-defendant, the alleged
mastermind of thi.s bribery conspiracy, Mr. Paul Minor. Mr. Minor is/was
a very successful trial lawyer in our state, he was one of the many
plaintiff'" s lawyers involved in the tobacco litigation that resulted in
the huge settlements with several states, including Mississippi. As T
said, Mr. Minor had successfully sued the U.S. Attorney's family
members for millions.
The fever of tort reform and anti "jackpot justice" was at its highest
when this investigation began and the governor's race was just heating
up. (One of Lampton' s family members and a cair.paign contributor, a
doctor, has been a named defendant in at least five (5) proscription
drug, multi plaintiff lawsuits - the plaintiff trial lawyers were made
out to be the evil of society and Mr. Minor was a very successful trial
lawyer.) Chapters Four, Seven and Eight of Stephanie Mencimer's
book Blocking the Courthouse Door: How the Republican Party and Its
Corporate Allies Are Taking Av;ay Your Right to Sue give one some idea
of the atmosphere here at the time this investigation began and why
this investigation was given life.
Attached for your reference is the statistic analysis as prepared by
Donald Shields and John Cragan, two professors of communication
studying the prosecution patterns of this administration. Shields and
Cagan have compiled a database of investigations and/or Indictments of
candidates and elected officials by U.S. attorneys since the Bush
administration came to power. Their study entitled The Political
Profiling cf Elected Democratic Officials: V/hen Rhetorical Vision
Participation Runs Aitok examined 375 cases and found that 10 involved
independents, 67 involved Republicans, and 298 involved Democrats. The
authors opine that the main source of this partisan Lilt was the huge
368
disparity in investigations of local politicians/ in which Democrats
were seven times as likely as Republicans to face Justice Department
scrutiny. My name can be found on page four of Appendix C of this
study .
During the course of the investigation and years prosecuting this case,
the Department of Justice threatened numerous witnesses involved in my
case with indlctm.ent relative to "conduit campaign contributions" and
investigated several trial lawyers involved in the litigation filed
against the prescription drug companies and the doctors involved. The
stench of corruption was released in the air in an effort to get the
pro-tort reform candidates elected, including the former head of the
RNC and one of the most well known lobbyisms in D.C., Haley Barbour.
While preparing for my defense it 'was discovered that the U.S. Attorney
had various conflicts of interests relative to the prosecut_on and
various motions to dismiss the indictment on the grounds of selective
prosecution were filed. The Court refused to allow us a hearing on the
issue and denied the motions. The Court also denied us the opportunity
to present this as part of our defense at trial. The Conflicts of
Interests Outlines that is enclosed herein (and all supporting
documents as found on the CD also enclosed) were proffered into the
record/ but the jury was not given the opportunity to consider the
tainted motives of the prosecution.
The irony in this matter is that the indictment alleged that T used my
"position as judge to take official actions and use his official
authority and position to provide an unfair advantage" over litigants
opposed to his co-accuscd. Yet, after reviewing the "conflicts of
interests" you wilt see that it would appear that USA Lampton has done
the same thing as it relates to contributors to his campaign and the
investigation that resulted i.n this indictment.
I would also point out that USA T.ampton was fined by the FDC for, am.ong
other reasons, his failures to properly disclose the identities of
contributors and receiving monies from an illegal PAC . Though the
investigation by the FEC into his violations of the federal campaign
finance laws and regulations was on going after he was nominated to the
post of U.S. Attorney, he failed to include the investigation in the
biographical sketch he had Lo prepare relative to his nomination. He
also continued to accept contributions to his unsuccessful campaign
funds and actually used the money collected after his nomination to
return money to the unauthorized PAC, to pay the IRS and to pay his
fines to the FF.C. It was not until he obtained an ethical opinion from
the DOJ in 2002, that he terminated his campaign.
In April, the jury convicted me and my two co-defendants. I face
sentencing in August. I don't have forty-four (44) current and former
Attorney General's to make my case to you. Had it not been for the
sacrifices of miy attorney, I would have had to defend myself or settle
for a public defender. There was no huge defense team made available to
me and none that T could afford. I write to you so that you can
consider my case with the other cases under review for potential
selective prosecution, abuse of office due to the effort to politicize
the Departir.ent of Justice.
After revie'wing the enclosed materials, I believe the adage "he who
lives in a glass house" will come to mind. The personal, social and
political relationships that the federal prosecutor has relative to the
369
prosecution clearly reflect that the prosecutor is ethically challenged
and his actions have violated DOJ policies and FEC laws as well as our
constitutional rights of the accused. I truly believe that my
prosecution was part of the efforts of the republican administration
and it's appointed U.S. Attorneys to weaken the democratic party's
credibility in the state of Mississippi and thus, pave the way for Lhe
republican control of all state and federal elected offices.
Should you have any questions or desire any additional information or
clarification of any of the issues involved herein please feel free to
contact me directly. If you have any suggestions relative to the steps
that I can take regarding this injustice, please let rr.e know.
I thank you in advance for taking the tiir.e to review these materials.
Sincerely yours,
John H. Whitfield
Attorney at Law
JHW/mmh
Enclosures {see page of numbered notes attached hereto)
cc: Honorable Tairmy Baldwin, Member, Committee on the Judiciary
Honorable Linda T. Sanchez, Chairwoman Commercial and Administrative
Law Subcommittee
Honorable Artur Davis, Member, Committee on the Judiciary Honorable
Edward M. Kennedy, Member Senate Judiciary Cornmittee Honorable Joseph
R. Biden, Jr., Member Senate Judiciary Comm.ittee
John H. Whitfield
Post Office Box 351
Biloxi, Mississippi 39533
228-432-7676
228-432-8998 (fax)
johnwhltfield3bellsouth.net < mailto : johnwhltf ield@bellsouth ■ net >
370
Mr. Cohen. Thank you, sir.
In what Justice Diaz, who is the sitting member of the Mis-
sissippi Supreme Court, describes, “as a scheme hatched by politi-
cally corrupt employees of the United States Department of Justice
and elsewhere,” in 2003, the United States attorney for the South-
ern District of Mississippi, Mr. Lampton, prosecuted Justice Diaz,
Mr. Minor, Mr. Whitfield, another judge and Justice Diaz’s ex-wife
based on allegations that Mr. Minor attempted to gain an unfair
advantage from the judges by guaranteeing loans in the 2000 cam-
paign when Justice Diaz was running for judge, a man who was
a Republican but had Democratic friends over the years, against a
man named Starrett who was a good 100 percent silk stocking Re-
publican with all the things that Republicans do to be in good
graces, a loyal Bushie, so to speak.
In that particular election in 2000, Mr. Minor made guaranteed
loans to the candidate running for justice, Mr. Diaz, at approxi-
mately $65,000. That was legal in Mississippi. It is perfectly legal
under Mississippi law. Another gentleman, Mr. Richard Dickie
Scruggs, made loans of $80,000 to Justice Diaz, the same election.
There are differences. And you start to see the branching of justice
and the definite questions which this Committee, Mr. Chairman,
needs to look into.
After that 2000 election, you have the same set of facts. Two
legal guaranteed loans made to this Supreme Court justice can-
didate, one by Mr. Diaz and one by Mr. Minor. Yet in 2003, Justice
Diaz, Mr. Minor, Mr. Whitfield, then a judge, another judge and
Mr. Diaz’s wife are all indicted. They are indicted in July of 2003,
even though Justice Diaz had recused himself from every case he
had ever had dealing with Mr. Minor, never voted on a thing, but
he is indicted.
He is indicted because he guaranteed these loans to this man
running for the Supreme Court. Mr. Scruggs guaranteed a loan at
a higher amount of money, repaid those loans himself rather than
raising money as Mr. Minor did. Accordingly, Mr. Scruggs is more
ingratiated, so to speak, with the justice than Mr. Minor would
have been, but Mr. Scruggs is not indicted.
Well, what is the difference in the two situations according to
these letters? Well, if you look at them, Mr. Minor was one of the
largest donors to the Democrats in that state, one of the 10 top do-
nors to John Edwards’ Presidential campaign and was known for
his support as a trial lawyer in working for the people’s interest
and against the tobacco interests.
On the other hand, Mr. Scruggs, also a trial lawyer, also a trial
lawyer, had after that election given half a million dollars to Re-
publican causes, a quarter of a million dollars to the Bush-Cheney
campaign, and, coincidentally or not, is the brother-in-law of Sen-
ator Trent Lott of Mississippi. Well, Mr. Scruggs not indicted and
apparently not even investigated.
It is this suggestion of politically motivated selective prosecution
that raises the question of whether the prosecution of Justice Diaz
and Mr. Minor fits in the larger potential pattern of selective pros-
ecution that we are discussing today.
Justice Diaz was not only indicted, but once the jury found him
not guilty, acquitted him of charges. Three days later, he is re-in-
371
dieted. And when you read through these letters and you see a pat-
tern of relationships and conflicts of interest that are not taken
into consideration by the court on the part of Mr. Lampton who
twice ran for Congress as a Republican, was constantly the opposi-
tion of Mr. Minor — he was his foil, his antithesis — and Mr. Minor
had sued a Fortune 500 company which Mr. Lampton’s family is
involved in — Mr. Lampton does not recuse himself. He brings a
prosecution looking apparently at the man first and the facts later
and prosecutes and conflict of interest did not discuss.
What I would like to ask in this situation is
Mr. Forbes. Mr. Chairman, the time has long expired.
Mr. Cohen. I would just like to ask the Chairman if he could
look into and include in this particular hearing discussions of
whether selective prosecution, politically motivated, happened in
Mississippi with these Democratic officeholders and include the
Mississippi case in the document requests that are made and ask
the Committee to make this case a full part of its inquiry. If you
look at it, it does an injustice to the State of Mississippi, to Lady
Justice and to what we know as fair play in America.
Thank you, Mr. Chairman.
Mr. Scott. Thank you. The gentleman’s time has expired.
We have a Committee hearing in this room at 1. That will begin
at the conclusion of this hearing.
Next is the gentlelady from California, Ms. Waters?
Ms. Waters. Thank you very much, Mr. Chairman.
I would like to first just congratulate you for this hearing. This
is extremely important, and I would think that all the Members of
this Committee from both sides of the aisle would be supportive of
this hearing and work that should be done to ensure that the citi-
zens of this country can depend on the criminal justice system and
the Justice Department to be impartial, to be fair and not single
out or political profile elected officials and basically politicize the
process. So I am very thankful to you.
I would just like to turn to Mr. Shields.
Professor Shields, earlier, you were asked whether or not you
were an attorney, and you were also asked if you had a degree in
statistics. I would like to debunk the notion that being an attorney
would somehow make you a better researcher or would make you
a better professor
Mr. Shields. Thank you.
Ms. Waters [continuing]. Or would somehow give you more
credibility than the professor emeritus that you are, the Depart-
ment of Communications, University of Missouri, St. Louis, and
lecturer. Department of Communications Studies at the University
of Missouri, Kansas City. You are, indeed, professor emeritus. De-
partment of Communication, University of Missouri, St. Louis. Is
that true?
Mr. Shields. That is true.
Ms. Waters. And you are published?
Mr. Shields. Yes.
Ms. Waters. Have you ever been accused of having sloppy re-
search or having published something that proved to be untrue or
statistically incorrect?
Mr. Shields. Not to my knowledge.
372
Ms. Waters. Is it true that when you started out the work that
led you to where you have come in looking at the political profiling
that that is not where you started out. You were looking for some-
thing else. Is that correct?
Mr. Shields. That is correct.
Ms. Waters. Would you tell the Committee what it was you were
researching when you stumbled upon this political profiling?
Mr. Shields. Yes. As I said in my opening statement, I was
studying rhetorical visions and had noted that with the end of
Communism, why there was not a dominant conservative theme,
piece of rhetoric around, and then John Ashcroft, who happens to
be from my state, Missouri, and was once our attorney general, was
once our governor, was once our United States senator before be-
coming Attorney General for the Nation, began a public corruption
initiative, and so I was studying to see if people were caught up
in this new vision, and he was running around not only the country
giving speeches on public corruption, but he was running around
the world giving speeches on public corruption.
Ms. Waters. And
Mr. Shields. So I was studying this.
Ms. Waters. As you describe this, this was a kind of new ap-
proach to preemptive strike on corruption
Mr. Shields. Yes, that is correct.
Ms. Waters [continuing]. That Mr. Ashcroft was talking about?
Mr. Shields. It was a move away from investigating and pros-
ecuting actual crimes to kind of ferreting them out before they hap-
pened.
Ms. Waters. And in your research, you had discovered that
there had been 375 investigations and-or indictments of candidates
and elected officials brought by U.S. attorneys since 2001.
Mr. Shields. Yes.
Ms. Waters. Would you reiterate again for us and would you
give us the percentages of indictments relative to Democrats and
Republicans?
Mr. Shields. Yes. As I also said in my opening remarks, the
written statement that I provided for the public record for here
now has 820 investigations, not just 375. So I will just give you the
new numbers. And the new numbers are 5.6 to 1 Democrats inves-
tigated versus each Republican. So, for every Republican in this
room, if you were investigated, there would be 5.6 Democrats that
were investigated along with you by this Justice Department.
Ms. Waters. You did much of your research from news reports,
and you mentioned that you were Googling and
Mr. Shields. Yes.
Ms. Waters [continuing]. Going on the Internet. Did you find it
odd that so much was being written about what appeared to be the
political profiling of elected officials?
Mr. Shields. Well, what is interesting is by looking at investiga-
tions at the local level, what I was really looking at was little
newspaper stories from all over the country about little local can-
didates and those stories did not get publicized in other news-
papers. So, if you were not reading the Birmingham News, you did
not know what was happening in some community around it in
Alabama, but by doing the Google search, you could find those arti-
373
cles and you would know. So it was the collective unity of all of
those small newspapers across the country that enabled me to
come up with 120 cases through September 16, which is when At-
torney General Gonzales stepped down.
Ms. Waters. Aside from questions that have basically, I think,
attempted to discredit you and your work, do you find it odd that
the Justice Department has refused to give information to this
Committee or to you or anybody else who would request it that
would further help to illuminate exactly what has been going on
and if, in fact, they have not been profiling, they could clear up the
questions that are being raised or, if they are, we would have more
information by which to do our oversight and do the corrections?
Do you find that odd?
Mr. Shields. Yes, I do find that odd. There is no doubt that the
Justice Department has this data and, if they would release it, we
would know the answers to just how accurate my study is tomor-
row morning.
I can tell you that in New Jersey, the U.S. attorney for New Jer-
sey is very proud of the fact that he goes after elected officials, and
he announces periodically an update on the number of actual elect-
ed officials that he has investigated and prosecuted, and his last
statement was on September the 24th, and he said he had 124.
Well, I have 116 of those in my database, and so it would seem to
me that I am within about 10 percent of having a census of the in-
vestigations that are out there.
Ms. Waters. Thank you.
Mr. Scott. The gentlelady’s time has expired.
The gentlelady from Ohio is recognized. She has by unanimous
consent yielded her time to the gentleman from Alabama.
Mr. Davis. Thank you, Mr. Chairman.
Let me thank all of my colleagues for being so generous in yield-
ing time for me to bring out as many facts as I could regarding this
case. This is not a jury, but I do feel the public is owed some con-
clusions. I am about to give one Member’s conclusions.
Ms. Siegelman and her two children are here today, and I will
tell all three of you very candidly that 6 months ago, if you had
asked me if you could rely that the system that prosecuted your fa-
ther and your husband had integrity, 6 months ago, I would have
told you that I believe in the system. I cannot sit here today and
say to you that I have confidence that the system worked in a fair
and just manner in this case. I will tell you just some of the rea-
sons.
At every turn, we see politics. Government was very eager to
prosecute Don Siegelman in 2002, sat down with a man named
Lanny Young, listened to what he had to say. The only time they
believed him is when he talked about Don Siegelman. That sug-
gests selectiveness.
We know there has been a lot of dispute around the credibility
of this lady, Jill Simpson. None of us has a truth detector. I do
know this much. She made her statements under oath in May, it
took until this morning for countering affidavits to make their way
to this Committee, and what do all the countering affidavits say?
No phone call on November 18, 2002. Did not happen. Pull the
phone records. Jill Simpson called Rob Riley’s office on November
374
18, 2002. Do not have a truth serum, but I know on that critical
point the countering affidavits are disproven and she is bolstered.
Look at Doug Jones’s testimony. He describes a U.S. attorney’s
office that was all set to walk away from this case, had doubts
about its own witnesses, ready to close the books. All of a sudden,
Washington comes in. By the way, Washington comes in in the
very timeframe that Simpson said she was told they came in, the
very timeframe she says she was told that Rove intervened, and all
of a sudden, the Department of Justice begins to run the show.
What do we know about this Department of Justice? We know
that it purged U.S. attorneys for being insufficiently loyal Bushies,
and that is not my phrase. That is the phrase of one of the people
who worked in the Department of Justice. We know that this De-
partment of Justice had a pattern of disproportionate prosecutions
so steep and so mountainous that the odds are 10,000 to one
against it. We know that.
Every time you look at the twists and turns in this case, you see
the presence of party politics. So I have to conclude this much.
Before that, let me make this other one observation. Mr. Lun-
gren, I am with you. This is a mystery to me, too, because I know
a lot of these individuals. I like the prosecutors in the Montgomery
office. I served with them, know them to be good men. I wonder
how in the world they got pulled into bringing a case so lacking in
merit that they wanted to walk away from it.
Maybe this is the best answer. Maybe we ought to stop asking
who is lying and who is telling the truth because we cannot sort
that and focus on this one question: Could it be that there was
such a culture that the Gonzales Justice Department created that
good prosecutors were somehow pulled into it and that they be-
lieved the only way to maybe earn spurs in this department is to
go out and turn the U.S. attorney’s office into a political tool?
Maybe they came to believe the only way to advance is to use this
office to get political enemies. Maybe before they even knew it, they
started to think the U.S. attorney’s office was just another thing
to be used, another piece of opposition research to be put on the
table.
I would like to think that was not the case, but that is the cul-
ture that I see tainted by all of this evidence. So I think, ladies and
gentleman. Members of the Committee, politics influenced this
case. That is the irresistible conclusion based on the facts — ^Wash-
ington politics, Karl Rove politics — and finally, the politics that
says if I cannot beat your ideas, if I cannot have confidence that
I can beat you at the ballot box, maybe I can do it the old-fashioned
way and just destroy you and destroy your reputation.
Ladies and gentleman, if that is what U.S. attorneys’ offices and
the Department of Justice becomes, it eats away at the integrity
of this whole system. People who have committed crimes ought to
go to jail, but, Mr. Jones, you said it better than anyone could say
it today. Diligent prosecutors unaffected by politics investigate
crimes, not people in search of a theory hoping that they can put
them in the dock.
Thank you.
Mr. Scott. Thank you. The gentleman’s time has expired.
The gentlelady from Texas, Ms. Jackson Lee?
375
Ms. Jackson Lee. Mr. Chairman, I heard a comment as I was
coming into the room that this has been devastating. I want to
thank the distinguished panel for their presence here, and thank
you for your indulgence of this timeframe. I thank the Chairmen
of the joint Committees for their leadership on this issue.
I just want to quickly make a point on the record, and then I am
going to go right at some pointed questions. My colleagues have
been certainly direct.
I hear the constant refrain of Karl Rove, and I would say to my
Chairpersons that it seems that he should be in this room. Karl
Rove has had his name engaged repeatedly in the whole episode
and debacle dealing with the fired U.S. attorneys. It seems that
those U.S. attorneys were from swing states, the very places that
a political Karl Rove would want to win. Karl Rove has a long his-
tory with Alabama, and he seems to have been able to engineer the
GOP takeover of Alabama in the 1990’s. We know that our Presi-
dent has been to Alabama.
Mr. Scott. Will the gentlelady suspend for just a minute?
I understand that Mr. Jones has a flight that he might be able
to make if he leaves right this minute.
Mr. Jones. It is close.
Mr. Scott. Are there any questions to Mr. Jones? If not, you are
excused.
Mr. Jones. Thank you, Mr. Chairman.
Ms. Jackson Lee. Thank you, Mr. Jones.
As well, we know that Governor Siegelman was someone who
changed the landscape, if you will, of politics in Alabama.
So, Mr. Jones, as you leave, let me thank you and just simply
say: Do you think they were out to get Mr. Siegelman, and I will
let you go at that.
Mr. Jones. I do not think there is any question that there were
a lot of people out to get him. Yes, ma’am.
Ms. Jackson Lee. No question?
Mr. Jones. No question.
Ms. Jackson Lee. Thank you for that answer.
Let me pose my questions quickly to the two gentlemen. I would
say to you. Professor Shields, in looking at the numbers, do you
think that it might have been a thought that we could command
that they were out to get Governor Siegelman?
Mr. Shields. Well, I only know about the dismissal and then the
second re-indictment.
Ms. Jackson Lee. Yes.
Mr. Shields. I go by the fact that there was a dismissal and then
there was a sudden re-indictment.
Ms. Jackson Lee. And so that looks like a turn of events out of
the ordinary?
Mr. Shields. Yes.
Ms. Jackson Lee. Let me for the record indicate that one of my
colleagues mentioned Mr. Jefferson. Let me make it very clear that
I think your numbers encapture his circumstances, but I think it
is important for our colleagues to note on the record Mr. Jefferson
has been protesting and presenting his innocence and it is one of
the longest cases we have ever seen in comparing it other cases.
It was the personal choice of any Member of Congress who decided
376
to plea. It was their personal choice. To date, Mr. Jefferson has not,
and he has continued to insist on his innocence, and I think that
speaks volumes.
I do want to go to this line of questioning about inaction. We
have talked about selective prosecution, and. General Thornburgh,
I want you to know that we have respected your legacy in civil
rights. Those of us who have studied generals and understand we
have heard your voice being very strong.
So I am going to pose you a question and this is on inertia, but
I do want to hear a little bit about Dr. Wecht, a 75-year-old, be-
cause that speaks to discretion and judgment and why someone
who seemed to have the association with maybe more liberal view-
points might have been subjected to selective prosecution.
I want to bring up the gentleman in Chicago that was a Demo-
cratic fundraiser. Professor Shields, if you happen to know about
that individual who was asked to roll over and did not roll over,
but, more importantly, was told if you roll over, you will go free.
But really I want you to get at this question of lack of enforce-
ment. In the Western District of Louisiana in the Jena 6 case,
there was a sitting U.S. attorney who kept his job who was an ap-
pointee who did not see fit to investigate or pursue the idea of
hanging nooses, the idea of disparate treatment — it was on the
state level — but the idea of civil rights prosecution, meaning going
forward to suggest that the abuse of a student, taking a gun out,
beating up a Black student, even though we do not condone the ac-
tions — we are not condoning the actions of those youngsters — but
if you would speak to the two points I gave you and then this ques-
tion of selective inertia where the U.S. attorney could have been ef-
fective but for politics possibly holding him back.
General Thornburgh, you want to speak on your case and then
if you would to the other points I have made.
Mr. Thornburgh. As I told the Committee earlier. Representa-
tive Jackson Lee, I have a hard time figuring out why the U.S. at-
torney would go to such lengths to convert these trivial irregular-
ities into Federal felony charges. When I look at it in the context
of her having carried out no investigations or prosecutions against
Republicans and bringing this case against a prominent Democrat
and measure that against the backdrop of the allegations of nation-
wide actions of a similar ilk, I can only come to the conclusion that
the prosecution was politically motivated.
I was asked earlier whether I had any evidence of conversations
between the White House or Federal officials. No, I do not, obvi-
ously, have those, but I look at this and I try my best to come up
with some other explanation as to why these charges might have
been brought, and I come up empty-handed.
I must apologize for being unable to comment on the Jena case.
I simply do not know, obviously, with any degree of certainty that
I have about the case I am discussing where I represent the indi-
vidual who is the subject, a target of this investigation the facts,
and it would be, I think you would agree, irresponsible for me to
offer an opinion on that in that context.
Ms. Jackson Lee. Professor Shields, inertia in prosecution? Se-
lective nonprosecution?
377
Mr. Shields. Well, in regard to the cases that are not of elected
officials or candidates, I did not study those. I can tell you that I
have run across a number of investigations of fundraisers. Now
which political party these fundraisers are of, I do not know, but
I did not track them as a database.
I think there is no doubt that the data speaks that something
caused this irregularity, this disproportion between investigations
of Democrats and investigations of Republicans. It was either pol-
icy driven, which I suspect — the data and the other circumstantial
evidence that this has been brought up here today and in previous
months by the Judiciary Committee suggests its policy driven. But
even if it were a result of just independent U.S. attorneys acting,
it is a bad thing. It is not good to investigate 5.6 Democrats to
every one Republican. When the ratio should be 1.2 Democrats to
one Republican.
So, even if it is not policy driven, it is something that this Com-
mittee and the Congress needs to enact certain structural changes
that will prohibit that from continuing.
Ms. Jackson Lee. And the same thing with inaction?
Mr. Shields. And the same thing. I mean, prosecutors have al-
ways had discretion not to bow out of a case, but there does not
seem to be any harm in that. But there is harm if it is done selec-
tively.
Mr. Scott. The gentlelady’s time has expired.
The gentlelady from Wisconsin, Ms. Baldwin?
Ms. Baldwin. Thank you, Mr. Chairman. I appreciate the fact
that you are holding this hearing today, and I certainly appreciate
the patient panel of witnesses for coming to speak with us today.
I had actually intended to ask my question of Mr. Jones, but I
will offer these witnesses an opportunity to respond.
But I want to use my time to address the case that has been
very, very controversial in my home state of Wisconsin, the pros-
ecution of a state employee by the name of Georgia Thompson.
Many, I think, are already familiar with the Georgia Thompson
case.
She was a procurement officer for the State of Wisconsin, a civil
servant who was hired during the term of a Republican governor,
and she was criminally prosecuted on charges that she awarded a
contract to a firm owned by someone who had made campaign do-
nations to our Democratic governor.
The case raised a lot of question marks when the Seventh Circuit
Appeals Court reversed her conviction last April calling the govern-
ment’s evidence “beyond thin” and describing the government’s
legal theories as essentially “preposterous,” and in a very unusual
move, the Seventh Circuit Court of Appeals issued an order the
very day of oral arguments directing the government, the authori-
ties to release Ms. Thompson immediately before close of business
that day, at oral arguments.
When it became clear that Ms. Thompson had not even known
about the donations and the winning bidder had submitted the low-
est bid, the question became even more urgent. Why was this
woman prosecuted and sent to prison?
Well, one possible answer is suggested in a letter submitted to
the Committee by counsel for the state workers union who rep-
378
resent Ms. Thompson, and I would like to ask, Mr. Chairman,
unanimous consent to enter that letter into the record.
[The information referred to follows:]
AITORNEYSATLAW
Hawks Quindel Ehlke & Perry, S.C.
MILWAUKEE OFRCE
Shareholders
Katherine L. Charlton
Timothy E. Hawks
Thomas Nelson
Lynn M. Novotnak
Barbara 2ack Quindel
Israel Ramon
Richard Saks
Daniel R. Schoshinski
Amy L. Shapiro
B. Michele Sumata
Jeftcy P, Sweedand
October 10, 2007
HQEP
700 West Michigan, Suite 500
PO. Box 442
Milwaukee, WI 53201-0442
414-271-6650
Fax 414-271-S442
Offices also in Madison
Emeritus
Richard Perry
Assoqates
Cocirsa M. Diat-Suaio
John B. Kiel
Michele A. Peten
Of Counsel to Firm
Walter F. Kelly
Robert]. Lemer
Howard N. Myers
Vicki Schaui
Daniel L. Shneldman
Honorable John Conyers, Jr., Chair
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Re: The Politicized "Honest Services" Prosecution of a State Employee
U.S. V. Thompson, case no. 06>CR'20 (Eastern District of Wisconsin)
Appeal no. 0€*3576 (Seventh Circuit Court of Appeals)
Dear Chairman Conyers:
I am writing on behalf of my client AFT-Wisconsin (AFT-W) and its affiliate
unions which represent, among others, approximately 6,500 employees of the State of
Wisconsin. AFT-W members are employ^ in a broad, cross-section of professional
positions. Their job responsibilities require them regularly to exercise their professional
judgment to decide questions involving large sums of money and affecting
fundamental rights of citizens. The highly politicized federal prosecution and
conviction of Georgia Thompson for mail and wire fraud based on her alleged
deprivation of the public and the State of her "honest services," in violation of 18 U.S.C.
§§1341 and 1346, potentially imposes a profound risk of criminal prosecution on AFT-W
members in the routine exercise of their duties and responsibilities.
Georgia Thompson was a State procurement section chief, which is a civil service
position. In 2005, she presided over a committee selecting a State travel agent to fulfill
the needs of about forty percent of the State's annual travel budget. The government
prosecuted Ms. Thompson because two executives of tiie travel agency which was
selected each had donated $10X100 to the re-election campaign of the Democratic
Governor. The govemmenf s unsupported theory was that Ms. Thompson influenced
the travel contract selection of the Governor's benefactors to gain political advantage for
her supervisors and to ensure her own job security. A jury found that Ms. Thompson
379
Honorable John. Conyers, Jr., Chair
U S. House of Representatives, Committee on the JucJiciary
October 10, 2007
Page 2
had crinvinally steered the travel contract to the winning agency, using a State
administratively-sanctioned procedure seeking the "best and final offer" from the
competing applicants for the state contract. Althougji the winning agency was the low
bidder for the State's contract, members of the selection committee had preferentially
rated other competitors and Ms. Thompson invoked the process to award the contract
to the low bidder.
According to the Seventh Circuit Court of Appeals, which reversed the
conviction, there was no quid pro cpio involved and there was not "so much as a whiff of
a kickback or any similaT impropriety" in the contract choice. Further, there was no
dispute that Georgia Thompson had no knowledge about the travel agents' donations
to the Governor, which had been properly disclosed and reported. Three months after
the decision to award the State travel contract Ms. Thompson received a meager $1,000
raise through normal civil-service processes. The prosecuting U.S. Attorney Steven
Biskupic portrayed this raise as Ms. Thompson's "private gain" from having criminally
skewed the contract award to the Governor's political donor.
As characterized by the Court of Appeals, the government based its prosecution
of Ms. Thompson, on the theory that "any public «nployee's knowing deviation from
state procurement rules is a federal felony, no matter why the employee chose to bend
the rules, as long as the employee gains in the process." Immediately after the Court
heard oral argument, it reversed the conviction and Nfe. Thompson's 18-month senterv:e
and ordered her released from federal prison. A panel of three Court of Appeals judges
issued a blistering opinion that highlighted the paucity of evidence against Ms.
Thompson and the shaky basis of the prosecution. United States v. Thompson, 484 F.3d
877 (7* Cir. 2007) . At oral argument, one judge announced that the government's
"evidence is beyond thin." In its opinion, the Court assailed the prosecution:
The prosecutor' s theory, which the jury accepted, is that Thompson deprived
Wisconsin of her "honest services" - that is, of her duty to implement state law
the way the administrative code laid it down, with only 300 of 1,000 points
apportioned according to price, while 200 pwints were available to the best-
looking or most mellifluous oral presenter, even if Thompson deemed that
allocation silly or coxmterproductive.
[TJhat approach has the potential to turn violations of state rules into federal
crimes. When the Supreme Court reverses a court of appeals, it is apt to say (as
the prosecutor says about Thcsmpson) that public officials have failed to
implement the law correctly. Does it follow that judges who are reversed have
deprived the United States of tiieir honest services and thus committed mail
fraud?
380
Honorable John Conyers, Jr., Chair
U.S. HoTOse of Representatives, Cominittee on the Judiciary
October 10, 2007
Page 3
United States v. Thompson, 484 F.3d at 882.
Like Georgia Thompson, State employees represented by AFT-W daily perform a
myriad of official functions, including administration and oversight of State
government benefits, funds, licenses, as well as oversight of private business in which
^e public has an interest. Their work can unknowingly benefit political friends of their
supervisors and eventually result in their advancement or a raise for their job well done.
The AFT-W affiliate Wisconsin Professional Employees Council, Local 4848
(WPEC) represents approximately 4,750 members employed by various state agencies
in professional fiscal and staff services, such as procurement specialists, accountants,
auditors, financial examiners, revenue agents, tax specialists, licensing examiners and
program coordinators. WPEC member real estate specialists in the State Department of
Transportation acquire and condemn real property and make property value
assessments of such properties. Procurement spedalists and purchasing agents, who
are employed by a number of State agencies, may typically award many state contracts
involving less than $25,000, based on a simplified biddii^ process, They may execute
contracts for larger amoimts without using a Request for Proposal process. In those
circumstances, procurement specialists and purchasing agents exercise their discretion
and profession^ judgment in recommending such contract awards.
The more than 1,500 members of Wisconsin Science Professionals, Local 3732
(WSF) are employed by the State of Wisconsin in occupations related to fishery,
forestry, wildlife, and parks. WSP member hydrogeologists, toxicologists, biologists,
water resource management specialists, waste water specialists, air management
specialists, and others prepare environmental impact statements. These statements are
important factors in the granting of various state permits for construction and
development on lands and waterways within the State. Waste management specialists
employed by the Department of Natural Resources, the Department of Transportation,
and the Department of Agriculture, Trade & Consumer Protection award consulting
contracts through three-person committees. These contracts govern repairs to
contaminated land and are valued up to $250,000.
Many other classifications of employees represented by AFT-W affiliates exercise
their independent judgment and discretioii in ways that have significant economic
impact on citizens and businesses involved in various activities within the State of
Wisconsin. For example, chemists employed by the Department of Natural Resources
are responsible for laboratory certification or registration and effectively issue business
licenses. Revenue field auditors assess taxes owed by entities and have discretion to
reach agreement on tax issues for amounts not exceeding $50,000 in tax per issue.
381
Honorable John Conyers, Jr., Chair
U.S. House of Representatives, Committee on the Judiciary
October 10, 2007
Page 4
Financial examiners audit the records of insurance companies and make decisions
whether capital rations, reserves and liquidity are sufficient to insure the companies'
solvency. Financial examiners employed by the Department of Financial Institutions
exercise their professional judgment to audit state-licensed banks and credit unions to
insure that losses and uncollected credits are properly reported and that banks maintain
a proper ratio between capital savings and capital borrowed. Consumer credit
examiners process licenses, conduct examinations and handle consumer complaints
regarding state-licensed, financial services companies. Slate public defenders negotiate
plea deals for indigent clients who may have some relation, familial or otherwise, with
political donors.
The experience of Georgia Thompson poses unique and limitless risks for these
and other state employees. State employees, like employees in the private sector, have
legitimate and weighty interests in tfieii job security and in the satisfaction of ihieir
supervisors. The government's theory of Ms. Thompson's federal criminal liability,
predicated on an employee's actions "intended to cause political advantage for her
supervisors" and "help her job security," potentially impugns with criminal scienter an
employee's routine, discietionary actions whenever those actions cause significant
public benefits, resources, or funds to redound to a political donor or supporter of the
employee's superior. The sole fact tiiat an affected party is a political donor to an
employee's superior should never by itself create any iiiference that the employee
denied the public and the state her honest services. Such prosecution has a chilling
effect on the daily work of State government due to legitimate employee fears that the
routine performance of their duties may subject them to prosecutorial scrutiny and
potential criminal liability.
Further, the Thompson prosecution \mder wire and mail fraud subverts a
constitutional doctrine that provides immunity to public officials. Such immunity is
designed precisely to protect their ability to exercise their professional judgment in
discretionary acts.
In addition, the context of the prosecution of Ms. Thompson was a dangerous
mix of partisan electoral politics. Following Ms. Thompson's release after four months
in federal prison, the New York Times editorialized tliat U.S. Attorney Biskupic had
"turned a flim sy case into a campaign issue that nearly helped Republicans win a
pivotal governor's race." Biskupic brou^t Ms. Thompson to trial in his jurisdiction in
the Eastern District of Wisconsin (Milwaukee), although Ms. Thompson lived and
worked in state government in the Western District (Madison), In the fall of 2005,
Biskupic publicly announced his ongoing investigation of Ms. Thompson, who was
indicted in January 2006. The trial began that summer and Ms. Thompson was
382
Honorable John Conyers, Jr., Chair
U.S. House of Representatives, Committee on the Judiciary
October 10, 2007
Page 5
sentenced in September, before the gubernatorial election in November. The local press
reports that, during that time, the Republican party spent millions of dollars on
advertising portraying Ms. Thomp>son 2 is a symbol of corruption in the administration
of the incumbent Democratic governor.
Ms. Thompson's excruciating experience highlig^te the need for reform of the
federal wire and mail fraud statutes to clarify and narrow the elements of the crime of
honest services mail fraud. To defend herself and her good name, Ms. Thompson spent
approximately $360,000, exhausting her life savings, losing her job and losing her home.
Law-abiding state employees whose daily work and decision-making potentially puts
them at the same risk should not work in fear tiiat they too will become political pawns
in high-stakes federal, criminal prosecutions serving dubious prosecutorial goals. The
Seventh Circuit addressed the need for law reform:
This prosecution, which led to the conviction and imprisonment of a civil servant
for conduct that, as far as tius record shows, was designed to ptrrsue the public
interest as the employee understood it, may well induce Congress to take
another look at the wisdom of enacting ambulatory criminal prohibitions.
Haziness designed to avoid loopholes throu^ which bad persons can wriggle
can impose high costs on people statute was not designed to catch.
LT.S. V. Thompson, 484 F.3d at 884.
Please enter this statement into ■die record of tiie forthcoming Committee hearing
on this matter. Thank you for the opportunity to address this matter on behalf of the
Wisconsin State employee members ttie AFT-Wisconsin. As an advocate for over
6,500 professional state employees, AFT-W seeks to ervsure that state employees can
perform their jobs and engage in the lawrful exercise of their professional judgmemt
without fear of ambiguous, politically-motivated federal criminal prosecution.
Honorable John Conyers, Jr., Chair
U.S. House of Representatives, Committee on the Judkiary
October 10, 2007
Page 6
Very truly yours,
HAWKS QUINDEL EHLKE & PERRY, S.C.
By
thawks@hqeplaw.com
B. Michde Sumara
msuinaTa@hqepIaw.com
cc:
Andy Gussert, President APT-Wisconsin
Art Foeste, Sr. Vice President, AFT-Wisconsin
Gary Steffen, President, Wisconsin Science Professionals
Steve Phillips, President, Wisconsin State Public Defenders Association
Greg Georg, President, Wisconsin Professional Employees Council
John Schettle, President, Wisconsin Physician & Dentist Association
Jeff Richter, President, Professional Employees in Research, Statistics & Analysis
Timothy E. Hawks
384
Mr. Scott. Without objection, so ordered.
Ms. Baldwin. Thank you, Mr. Chairman.
I especially commend the letter to my colleagues because it really
catalogs the awful personal toll that this prosecution on Ms.
Thompson produced. She in the course of this prosecution to defend
herself and her good name spent approximately $360,000, exhaust-
ing her entire life savings, in the course of the prosecution, lost her
job and her home, facts, I think, that we should never lose sight
of when we consider these cases and their consequences.
As to why the case might have been brought, the letter also de-
scribes the prosecution as highly politicized. It further states, “The
context of the prosecution of Ms. Thompson was a dangerous mix
of partisan electoral politics.”
Following Ms. Thompson’s release after 4 months in Federal
prison. The New York Times editorialized that U.S. Attorney
Biskupic had turned a flimsy case into a campaign issue that near-
ly helped Republicans win a pivotal governor’s race.
The letter goes on to question why the case was brought in the
Milwaukee Federal court instead of Madison where Ms. Thompson
lived, the contract was executed, where she worked, and questions
the timing of the indictment and the trial alongside the timing of
a heated electoral campaign.
Quoting again from the letter, “During that time, the Republican
Party spent millions of dollars on advertising specifically por-
traying Ms. Thompson as a symbol of corruption of the incumbent
Democratic regime. It is clear that the prosecution was politically
useful to Republicans, but, at this point, of course, we do not know
if that was a side effect or if the prosecution was, in fact, politically
motivated.”
Now U.S. Attorney Biskupic, who is respected in the State of
Wisconsin, has strongly denied this, and I have not formed a judg-
ment on that ultimate issue, and I have an open mind, but we do
know a few things.
First, we know that for a time, Mr. Biskupic’s name was on the
U.S. attorney’s firing list, and he appears to have been removed
from that list after the Thompson indictment was brought.
Second, we know that Karl Rove was concerned about so-called
vote fraud enforcement in Mr. Biskupic’s district, and other U.S.
attorneys who were not aggressive enough on those cases to satisfy
Republican interests do appear to have actually been fired.
Finally, we know that the Seventh Circuit has told us that this
was not just a weak case. It appears to have been simply an unrea-
sonable one. It is one thing to have a conviction reversed. It is
quite another thing altogether for an appeals court to reverse a
conviction, to ridicule the prosecution and to order the government
to release the defendant before the close of business that very day.
So, on that note, I will give you two the question I was going to
give to Mr. Jones. Are you aware of the frequency of criminal con-
victions, especially those reversed in that fashion and, if not, what
would you reaction have been to something like that?
Mr. Thornburgh. May I speak to that, Mr. Chairman?
Mr. Scott. Yes, Mr. Thornburgh?
385
Mr. Thornburgh. I ask to do so because the findings of the Sev-
enth Circuit Court in the Thompson case relate directly to the
grievance that I presented to this Committee today.
In the opinion rendered by the Seventh Circuit, a distinguished
Federal judge, Frank Easterbrook — I must make full disclosure, a
former colleague of mine at the Department of Justice, but a re-
spected Federal judge — expressed the growing misgivings that Fed-
eral courts have about overzealous applications of section 666 and
1346 of the Federal Code, the very sections that we have pointed
out were abused in the Wecht prosecution.
And knowing that this Committee is interested not only in hear-
ing grievances, but in taking constructive action to prevent this
from recurring, I would refer you to Judge Easterbrook’s suggestion
that Congress take another look at the wisdom of enacting ambula-
tory criminal prohibitions, which is a fancy way of saying prohibi-
tions that are adjustable to the moment and can be fashioned in
the manner that has been discussed today.
I would ask on behalf of all those defendants whose cases have
been discussed here today involving these open-ended kinds of op-
portunities that the Congress might be well-advised in its oversight
hearings to look at these particular statutes and the opportunity
for abuse that lies within having such vague and open-ended admo-
nitions in the Federal Criminal Code.
Thank you.
Mr. Scott. Thank you.
Mr. Shields?
Ms. Jackson Lee. I have a unanimous consent, Mr. Chairman.
Mr. Scott. For what?
Ms. Jackson Lee. To put two names on the record that I did not
mention in my remarks.
Mr. Scott. The gentlelady will state the names.
Ms. Jackson Lee. Yes, I would like to put on the record Demo-
cratic contributor Peter Palivos that I was mentioning in my re-
marks and also former Councilmember Ben Reyes from Houston
who was subjected to prosecution under the hotel sting operation
in Houston, Texas.
I yield back.
Mr. Scott. Without objection.
I want to thank our witnesses for their testimony today. Mem-
bers may have additional written questions which we will forward
to you and ask that you answer as promptly as you can in order
that they may be made part of the record.
Without objection, the hearing record will remain open for 1
week for the submission of additional materials, and without objec-
tion, the Committee stands adjourned.
We will begin the next hearing as soon as we can get set up.
[Whereupon, at 1:30 p.m., the Subcommittees were adjourned.]
APPENDIX
Material Submitted for the Hearing Record
( 387 )
388
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington. D.C. 20530
September 4, 2007
The Honorable John Conyers, Jr.
Chairman
Committee on the Judiciary
U. S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter, dated July 17, 2007, which requested information and
documents in connection with the Committee’s oversight inquiry regarding allegations of
political interference in the matters of United States v. Cvril H. Wecht (W.D. Pa.), United States
V. Georgia Thompson (E.D. Wis.), and United States v. Don Siegelman (M.D. Ala.). We are
sending similar responses to the ocher Members who joined in your letter to us. We are also
sending copies of this letter to the Chairman and Ranking Minority Member of the Senate
Judiciary Committee, who requested information regarding the Georgia Thompson matter in a
letter, dated April 10, 2007.
In response to your request, we searched for documents in the relevant U.S. Attorney’s
Offices, the Criminal Division, the Office of the Deputy Attorney General for the Thompson and
Wechl matters, and the Executive Office for U.S. Attorneys and the Office of the Attorney
General for the Thompson matter. While our search is continuing and we will supplement our
response if additional documents are found, we have not identified any documents related to
these three cases containing communications from White House staff. Members of Congress,
congressional staff, or state and local political party officials or their staff.
The Department has substantial confidentiality interests in predecisional memoranda,
analysis, and other deliberative communications concerning our decisions whether to prosecute
individuals. Prosecution memoranda contain frank assessments of evidence and witnesses,
recommendations, and evaluations of legal issues. We believe that their disclosure would chill
the candid internal deliberations that are essential to the discharge of our law enforcement
responsibilities. Moreover, the disclosure of these types of materials would adversely impact
individual due process and privacy interests. Finally, disclosure would raise substantial
separation of powers concerns and risk compromise to the integrity of the criminal justice
process. The longstanding Department position was articulated by the Attorney General
(as Counsel to the Fh-esident) in a letter to Congressman Burton regarding the President’s
assertion of executive privilege over prosecution memoranda:
389
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[C]ongressional access to these kinds of sensitive prosecutorial decisionmaking
documents would threaten to politicize the criminal justice process and thereby
threaten individual liberty. The Executive Branch is appropriately concerned that
the prospect of congressional review of prosecution or declination memoranda
might lead prosecutors to err on the side of investigation or prosecution solely to
avoid political criticism. This would, in turn, undermine public and Judicial
confidence in our law enforcement processes.
Letter to the Honorable Dan Burton, Chairman, Committee on Government Reform, U.S. House
of Representatives, from Alberto R. Gonzales, Counsel to the President (Jan. 10, 2002).
Also based on long-standing policy and many of the same considerations, we do not
provide non-public information about pending law enforcement matters. We want to avoid any
perception that the conduct of our criminal investigations and prosecutions is subject lu political
influence. Disclosures of such non-public information could also compromise our law
enforcement efforts by revealing our investigative plan and prosecution priorities and damage the
privacy and due process interests of individuals involved. Accordingly, we are not providing
non-public documents relating to our ongoing investigations and prosecutions of Dr. Wecht and
Mr, Siegelman. We believe that the publicly available materials in those cases provide important
information that we hope will be helpful to the Committee.
In United States v. Siegelman . Mr. Siegelman was tried and convicted by a jury of federal
funds bribery (18 U.S.C. § 666), conspiracy to commit mail fraud (IS U.S. C. § 371), honest
services mail fraud (18 U.S.C. §§1341 and 1346), and obstruction of justice (18 U.S.C. § 1512).
Subsequently, Mr. Siegelman filed an appeal of his conviction and sentence in the United States
Court of Appeals for the Eleventh Circuit. This case was brought by career prosecutors,
following the May 2002 recusal of U.S. Attorney Leura Canary, based upon the law and the
evidence. The appeal is pending and has not yet been briefed by the parties. Although, as
discussed above, we cannot provide deliberative documents relating to the charging decision in
this matter, we have enclosed publicly-available materials which provide background on the
government’s position in the case, Presently, we are continuing to search for potentially
responsive documents, and we will supplement this response when that process is completed.
The focus of recent controversy has been a May 2007 affidavit signed by Alabama
attorney Jill Simpson. Ms, Simpson signed the affidavit almost a year after Mr. Siegelman’s
conviction, and it has never been filed in the case. In the affidavit, Ms. Simpson claims to have
overheard statements she attributes to U.S, Attorney Leura Canary’s husband. The national
media has interpreted the alleged statements as linking the prosecution of former Governor
Siegelman to Karl Rove.
390
-3-
At the time Ms. Simpson alleges the purported statements were made, Mr. Siegelman was
already under federal investigation. The existence of the investigation had been widely reported
in newspapers and television reports, some released more than ten months before the alleged
conversation. The alleged conversation described by Ms. Simpson has been denied by all of the
alleged participants except Ms. Simpson. Indeed, even Mr. Siegelman states that Ms. Simpson’s
affidavit is false as it relates to him. Moreover, according to Ms. Simpson, she met with
Mr. Siegelman and his co-defendant Richard Scnishy for several months before signing the
statement at their urging. She also claims to have provided legal advice to them. She contends
she drafted but did not sign a motion filed by Mr. Scrushy seeking to have the federal judge
removed from the case.
Finally, your letter mentions allegations of jury tampering that were raised in the case.
The defendants made these allegations the basis of several motions for relief. The Court
conducted an extensive investigation into the allegations of juror misconduct, conducting two
evidentiary hearings and calling all twelvejurors to the stand to answer numerous questions
under oath. Following its independent investigation, the Court found no basis for a new trial
under the governing authorities. The Court’s order on the issue is included among the documents
furnished to you with this letter. The Court’s ruling on that issue is encompassed by the appeal
now pending in the Eleventh Circuit Court of Appeals.
In United States v. Weeht . the grand jury returned an indictment on Januaiy 20, 2006, and
trial is now set for January 28, 2008. Dr. Weeht is charged in 84 counts with using government
resources for his private gain and defrauding his private clients in violation of 18 U.S.C. §§ 1341,
1343, 1346, and 666, Although trial was originally scheduled for October 2006, a date requested
by Dr. Weeht, this initial trial date was stayed by the U.S. Court of Appeals for the Third Circuit
while it considered the government’s interlocutory' appeal of an order unsealing certain personnel
records of an agent involved in the investigation.
Enclosed are publicly-available materials which provide background on the
government’s position in the Weeht case. These materials also serve to coirect several factual
inaccuracies which appear in your letter about this case. First, your letter states that the U.S.
Attorney’s Office “urged the courts to set the trial in October, 2006, a month before the
congressional elections,” and that the trial was postponed “only after the federal appeals court
agreed to hear motions by Dr. Weeht’s attorneys.” Both allegations are demonstrably inaccurate.
The enclosed transcript, dated February' 10, 2006, states:
Mr. Johnson [Dr. Weeht’s counsel]: One thing that will determine when it would be
timely to go to trial from the standpoint of the defense will have to do with discovery
because there will be a certain amount of discovery that we need before we can file
pretrial motions, number one ... I think that we would probably not be ready to go to
trial, based on our need to review the documents and file motions, until at the very
earliest September. . . .
391
-4-
The Court: Then I would also like your proposed order to choose one of these trial dates
with the knowledge that you have got to hold this date ... So the first date you get is
September 5th. Second date you get is September 1 1th. The third date you get is October
17th. Does the Government need more than tho^ three dates?
Mr. Stallings [Government counsel]: No, your Honor. Either of those would be fine.
The Court: You don’t need - you just have to work together. Are those sufficient dates
for the Defendant to pick a date that works?
Mr. Johnson: They are, your Honor, yes. Sir.
Subsequently, Dr. Wecht’s counsel, not the government, selected the October 2006 trial
date, which was embodied in a Joint pretrial order filed on March 1, 2006. Moreover, Dr. Wecht
never filed a motion to continue the trial. Instead, the government, Dr. Wecht, and third party
media outlets filed various interlocutory appeals. The Third Circuit, on its own initiative, stayed
the trial in connection with the government’s appeal and the media outlet’s appeal, not the
defendant’s interlocutory matter. ( See District Court Order, dated June 14, 2007, stating
“Defendant sought, but did not receive, from the Court of Appeals, a ‘slay [of] district court
proceedings pending disposition of petition for writ of mandamus.’ Instead, the Court of
Appeals stayed only the trial, and the Court’s stay order was not filed at that Court’s case number
for defendant’s mandamus action (06-3704), but only at the case numbers for the other related
appeals.”).
Your letter also alleged that the U.S. Attorney’s Office “intended to arrest Dr. Wecht and
subject him to a ‘perp walk,’ even though Dr. Wecht and his lawyers repeatedly offered to self-
surrender,” and suggested that only the intervention of the Deputy Attorney General convinced
the U.S. Attorney to reassess this decision. As court filings demonstrate, this allegation is
inaccurate. On January 18, 2006, First Assistant U.S. Attorney Robert Cessar informed
Dr. Wecht’s then-counsel, J. Alan Johnson, that Dr, Wecht would be issued a summons to
appear, not arrested on a warrant. (See Cessar affidavit ]I*jl 6-7). However, Dr. Wecht does not
claim to have contacted the Office of the Deputy Attorney General about this issue until
January 19, 2006. Id.
Finally, the sole source cited in your letter to support the allegations of a threatened arrest
and “perp walk” is an article quoting extrajudicial statements of Dr. Wecht’s counsel. The
district court has since referred the matter of counsel’s extrajudicial statements in the case to the
Disciplinary Board of the Supreme Court of Pennsylvania for a determination of whether they
violate the Rules of Professional Conduct. (See District Court Order, dated June 20, 2007).
Indeed, as demonstrated in the attached filings, a significant concern m this case has been
defense counsel’s repeated extrajudicial statements, and not the single announcement made by
the U.S. Attorney upon Dr. Wecht’s indictment.
392
-5-
With respect to your inquiry regarding United States v. Georgia Thompson . Ms. Thompson,
a former official in the State of Wisconsin Department of Administration, was tried and convicted
by a jury of honest services mail fraud (18 U.S.C. §§ 1341 and 1346) and misapplication of funds
(18 U.S.C. § 666). As you know, the United States Court of Appeals for the Seventh Circuit
recently issued a written opinion reversing the conviction and entering a judgment of acquittal. We
appreciate the Committee’s interest in information about the decision to prosecute in this case, and
the U.S. Attorney, Steven Biskupic, is prepared to provide an informational, untranscribed briefing
to Committee staff and answer their questions about that matter. This briefing can be scheduled at
a mutually convenient time in the near future.
In response to your request, we searched for responsive documents in the U.S. Attorney’s
Office in the Eastern District of Wisconsin, the Executive Office for U.S. Attorneys (EOUSA), the
Criminal Division, the Office of the Attorney General, and the Office of the Deputy Attorney
General. As we have discussed with Committee staff, the U.S. Attorney’s Office has advised that
the documents responsive to your request for memoranda and other materials concerning the
Thompson case are voluminous and the processing of those materials would require an extensive
commitment of resources and time. They include pleadings, exhibits, correspondence, briefs, legal
memoranda, transcripts, appellate materials, discovery documents, and other records, many of
which are publicly filed and available through the PACER docketing system. We could process
these documents if necessary, but given their volume and ready availability on PACER, the
Committee may prefer to obtain them from that source.
In addition to the foregoing and the documents already provided to the Committee on
May 17, 2007, enclosed are 27 pages of documents responsive to your request. We have redacted
information that would implicate the privacy interests of Department of Justice employees, such as
the names of technical support staff who conducted the searches in response to your request. We
have also redacted non-public information about matters unrelated to the Thompson case and a
small amount of text that implicates the privacy interests of staff in the U.S. Attorney’s Office. We
have also not included documents which contain grand jury information, pursuant to Rule 6(e) of
the Federal Rules of Criminal Procedure. As previously indicated, our search has not located
documents containing communications from White House staff. Members of Congress,
congressional staff, or state and local political party officials and their staff related to this matter
Our search for materials responsive to your request concerning the Georgia Thompson case
yielded a number of other documents which we believe reflect deliberations and communications
implicating substantial confidentiality interests of the Department. These include U.S. Attorney
Biskupic’s notes and one letter written in the course of the investigation memorializing
conversations with attorneys of persons of interest who were not indicted; pre-indictment
documents, including emails, letters, and memoranda, regarding the resolution of a potential
conflict of interest which arose concerning individuals who were investigated, but never indicted;
393
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and a memorandum from U.S. Attorney Biskupic to the Criminal Division requesting authorization
to issue a media subpoena pursuant to 28 C.F.R. § 50.10, and a subsequent 2-page email on this
topic.
We hope that the documents we are presently producing, in addition to an untranscribed
briefing provided by U.S. Attorney Biskupic, will satisfy your inquiry. However, we are prepared
to confer with Committee staff if you have further information needs. Please do not hesitate to
contact this office if we may be of further assistance on this or any other matter.
Sincerely,
Principal Deputy Assistant Attorney General
Enclosures
cc: The Honorable Lamar Smith
Ranking Minority Member
The Honorable Patrick J. Leahy
Chairman, Senate Judiciary Committee
The Honorable Arlen Specter
Ranking Minority Member, Senate Judiciary Cominitlee
394
JOHN CONYERS. JR.. Michigan
CHAIRMAN
RANKING MINORITY MEMBER
ONE HUNDRED TENTH CONGRESS
dongrEss of the lanitEd States
illDUBt of TRepraentatiuEB
COMMITTEE ON THE JUDICIARY
2138 Rayburn House Office Building
Washington, DC 20515-6216
(202) 225-3951
http://www.liouse.gov/ludlciafv
F. JAMES SENSENBRENNEFt. JR.. '
HOWARD COBLE, Noith Carolina
ELTON GALLEGLY, CalHoioia
BOB GOODLATTE, Virginia
STEVE CHABOT.Otlio
OANIEL E. LUNGREN, California
CHRIS CANNON, ULJh
DARRELL E. ISSA. California
J. RANDY f6rBE& Virrjmia
STEVE KING, lovra
TOM FEENEY, florifle
TRENT FRANKS, Arijone
LOUIE QOHMERT.Teias
JIM JORDAN, Ohio
July 17, 2007
The Honorable Alberto R. Gonzales
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530
Dear Mr. Attorney General:
As you are well aware, the bedrock principle of our federal criminal system is that justice
must be served objectively, on a non-partisan basis, and without fear or favor. Our investigation
into the U.S. Attorneys scandal, however, has raised serious concerns about efforts to undermine
this basic principle. Because of these concerns, and in order to further our investigation, we ask
that you provide us with certain critical documents and information relating to U.S. Attorney’s
offices that may have initiated prosecutions against public officials and others based on their
political affiliation.
Evidence suggests that at least some of the nine terminated U.S. Attorneys were forced
out due, in part, to their reluctance to pursue charges against Democratic officials, or their
willingness to move forward in investigating or prosecuting Republican officials. On the other
hand, while a number of other U.S. Attorneys were considered for termination, most were
retained md described as “loyal Bushies.” During the course of our investigation, moreover,
serious allegations have been made that some U.S. Attorneys who were not terminated, engaged
in selective and improper targeting of Democrats for prosecution.
Concerns regarding politically based, select prosecutions have been raised by a recent
academic study by Messrs. Shields and Cragan that found federal prosecutors during the Bush
Administration have indicted Democratic officeholders far more frequently than their Republican
counterparts.' The study identified 375 investigations and/or indictments of candidates and
' Donald C. Shields & John F. Cragan, The Poutical Profiling of Elected Democratic Officials:
When Rhetorical Vision Participation Runs Amok (2007), available at
http;//\vww.epluribusmedia.org/colunins/2007/^0070212_political_profilmg.htinl
395
The Honorable Alberto R. Gonzales
Page Two
July 17, 2007
elected officials brought byU.S. attorneys since 2001.^ The study’s authors found that of the 375
cases they identified, 10 involved independents, 67 involved Republicans, and 298 involved
Democrats.^ The authors noted that the greatest partisan disparity in investigations amd/or
indictments involved local politicians, where Democrats were seven times as likely as
Republicans to be subject to criminal charges from the D^artment of Justice/
Allegations that even one of the nation’s 93 U.S. Attorneys is improperly prosecuting or
failing to prosecute Democratic officials based on their political affiliation have the potential to
taint and undermine the legitimacy of our entire criminal justice system. In fact, the perception
that U.S. Attorney’s offices are improperly exercising their prosecutorial powers in a partisan
manner is already leading to an increase of motions in court by defense counsel The Los
Angeles Times recently reported that several defense attorneys are citing the allegations of
selective prosecution as evidence that federal prosecutors are bringing criminal charges based
upon improper political motives.* These defense attorneys allege that prosecutors consider a
target’s political affiliations when deciding whether or not to issue indictments.^
In order to assure the public that everyone, no matter their political affiliation, is treated
equally under the law, we are initially requesting documents relating to the Department’s
handling of three cases, and in particular any memoranda, analysis, or other communications
discussing whether and to what extent criminal charges should be and were pursued against the
individuals listed below. Additionally, with regard to these prosecutions, we are requesting any
memoranda, analysis, or other communication from any White House staff, members of congress
or their staff, and any state or local political party officials or their staff.
• The 2006 conviction of Alabama’s former Democratic Governor Don Siegelman for
bribery, conspiracy, and mail fraud has raised serious concerns. Mr. Siegelman was
indicted in 2004, two years after losing the governor’s race by a mere 3,200 votes in the
closest governor’s election in Alabama state history. In May, 2007, Jill Simpson, a
^Id.
^ Id.
Ud.
* Richard B. Sciirnitt, in coMrts, L-A. Times, June 18, 2007, at A].
Ud.
396
The Honorable Alberto R. Gonzales
Page Three
July 17, 2007
Republican attorney in Alabama who had worked for Mr. Siegelman’s 2002 Republican
opponent, swore in an affidavit that in 2002, a former protege of Karl Rove told a small
group of Republican political operatives that Karl Rove and two U.S, Attorneys in
Alabama were working to “take care of’ Mr. Siegelman.’ The Rove protege, Bill Canary,
is married to Leura Canary, who President Bush appointed in 2001 to be the U.S.
Attorney in the Middle District of Alabama. In 2005, the U.S. Attorney’s Office in the
Middle District of Alabama indicted Mr. Siegelman (Ms. Canary recused herself from
participating in the Siegelman case in 2002). bi her affidavit, Ms. Simpson said that Bill
Canary told her and two colleagues that “Karl [Rove] had spoken with the Department of
Justice and the Department was already pursuing Don Siegelman.”® The phone call that
Ms. Simpson was referring to occurred in November, 2002, when Mr. Siegelman was
seeking a recount of the vote he had just lost, and when Republican operatives were
concerned that Mr. Siegelman could be a significant political threat in future elections.®
There have been several reported irregularities in the case against Mr. Siegelman that
raise questions about his prosecution, bi 2004, charges against Mr. Siegelman were
dropped by the U.S. Attorney’s Office in the Northern District of Alabama before the
case went to trial, and the judge harshly rebuked prosecutors bringing that case.^'^ In the
RICO case filed in the Middle District of Alabama in 2005, there have been allegations of
jury tampering involving two of the jurors who convicted Mr. Siegebnan.’‘ These and
other irregularities prompted 44 former state attorneys general to sign a petition “urging
’ Jill Simpson, Affidavit at 3. The participants in the conversation described in the Simpson affidavit have
challenged Simpson’s allegations in their responses to news organizations. U.S. Attorney Leura Canary has
maintained that due to her recusal, she had no role in the charging decision around Siegelman. She has also insisted
that the initial investigation was not prompted by her political ties. Without access to the requested documents, the
Judiciary Committee is not in a position to evaluate their conqjeting factual claims or to judge the veracity of any of
these parties.
‘Id.
9
Id.
AdamZagoiin, Rove Named in Alabama Controversy, TiMB, June 1, 2007.
Patricia C. McCarter, Sentencing Siegelman, Huntsville Times, June 25, 2007.
397
The Honorable Alberto R. Gonzales
Page Four
July 17, 2007
the United States Congress to investigate the circumstances surrounding the investigation,
prosecution, sentencing and detention” of Mr. Siegelman.'^
On April 5, 2007, the Seventh Circuit Court of Appeals, citing “evidence [that] is beyond
thin,” threw out the federal conviction of Georgia Thompson, a Wisconsin state
procurement officer.” The office of the U.S. Attorney in Wisconsin, Steven Biskupic,
had won a jury conviction of Ms. Thompson, claiming the career civil servant
impermissibly awarded a contract to a travel agency whose director was a political
contributor to Democratic Governor Jim Doyle. The U.S. Attorney proceeded with the
prosecution even though the travel agency that won the contract submitted the lowest bid,
and tied for first place on the complicated merit score that ranked all contract bidders.
Additionally, there was no evidence that Ms. Thompson was aware of or interested in the
political contributions by the head of the travel agency.’^
Steven Biskupic’s name appeared on a March, 2005, list that was compiled by
Department of Justice staff which named U.S. Attorneys who could potentially be ousted,
In January, 2006, Mr. Biskupic indicted Ms. Thompson; that same month, Mr. Biskupic’s
name had been removed from the DOJ list of U.S. Attorneys who might be replaced.
After Ms. Thompson’s conviction in June, 2006, the campaign of Gov. Doyle’s
Republican opponent, U.S. Representative Mark Green, seized on the conviction as a
means to paint Gov. Doyle as corrupt.” The Court of Appeals, finding that no crime had
been committed, acquitted Ms. Thompson, declaring her “innocent,” but of course, the
political damage had been done and could not be rectified.
On April 10, 2007, Senate Judiciary Committee Chairman Patrick Leahy and several
other senators requested documents regarding the Georgia Thompson case, including
documents regarding contacts between White House personnel. Main Justice, or outside
parties and the United States Attorney’s office h^dling the prosecution. Our Committee
” Letter from 44 former state attorneys general, to John Conyers, Jr., Chairman, Committee on the
Judiciary, and Patrick Leahy, Chairman, Senate Judiciary Committee (July 13, 2007) (on file with the Committee on
the Judiciary).
” U.S. V. Thompson, 484 F.3d 877 (7th Cil. 2007).
'‘' id. at 878.
Bill Lueders, Biskupic tried to ‘squeeze’ Georgia Thompson: U.S. Attorney's office made offers of
leniency, tied to her testifying against others, ISTHMUS, May 17, 2007, available at
http://www.thedailypage.coin/isthinus/article.php?article=7081.
398
The Honorable Alberto R. Gonzales
Page Five
July 17, 2007
joined that request the following day.*® On May 17, 2007, Principal Deputy Assistant
Attorney General Richard Hertling responded by producing some documents relevant to
other requests made in that letter, but did not produce miy documents regarding the
Thompson case.*^ Mr. Hertling explained that “processing [the Thompson] documents
would require an extensive commitment of resources and time.”’® Mr. Hertling’s letter
further noted that the Department was in the process of searching for evidence of
communications between Main Justice and the local U.S. Attorney’s office, and that he
expected ‘that there were [such] communications during the investigation and prosecution
of the case.”*^ Finally, Mr. Hertling’s letter explained that the search for relevant
communications regarding the Thompson case continued in “the Criminal Division, the
Office of the Attorney General, and the Office of the Deputy Attorney General.”^® The
two months that have passed since Mr. Hertling’s letter have not assuaged our concerns
regarding the Thompson prosecution, and we are renewing our request that the documents
related to that matter be promptly produced as well as the other documents requested in
this letter.
The prosecution of Dr. Cyril Wecht in the Western District of Pennsylvania by U.S.
Attorney Mary Beth Buchanan has also engendered controversy. It has been alleged that
the case of Dr. Wecht, a prominent 75-year old Democrat who was the coroner in
Allegheny County, is indicative of other prosecutions in the Western District - since
2001, the U.S. Attorney has never indicted a Republican official, and has only prosecuted
officeholders who are Democrats.^* Dr. Wecht, a world renowned forensic pathologist
and television commentator, was charged with misusing his office and personally
enriching himself by, among other things, striking a deal with a local university to trade
Letter from Patrick Leahy, Chairnian, Senate Judiciary Coininittee, et. al., to Alberto Gonzales, Attorney
General, U.S, Department of Justice (April 10, 2007) (on file with the Committee on the Judiciary).
Letter from Richard Hertling, Principle Deputy Attorney General, U.S. Department of Justice, to Patrick
Leahy, Chairman, Senate Judiciary CommiHee (April 10, 2007) (on file with the Committee on the Judiciary).
Mary Beth Buchanan, Interview with House Committee on the Judiciary, at 145-6.
399
The Honorable Alberto R. Gonzales
Page Six
July 17, 2007
unclaimed cadavers for university lab space.^ Claiming Dr. Wecht was a flight risk, Ms.
Buchanan advised his defense lawyers, including former Attorney General Richard
Thornburgh, that her office intended to arrest Dr. Wecht and subject him to a “perp
walk,” even though Dr. Wecht and his lawyers repeatedly offered to self-surrender and
voluntarily appear in court to be arraigned.^^ Reportedly only after former Attorney
General Thornburgh spoke with Deputy Attorney General Paul McNulty did Ms.
Buchanan agree not to arrest Dr. Wecht and subject him to a “perp walk.” In court
filings. Dr. Wecht alleges that Ms. Buchanan’s office inflamed the press by making
inappropriate statements.^^ The U.S. Attorney’s office urged the courts to set the trial in
October, 2006, a month before the congressional elections; the case was postponed only
after the federal appeals court agreed to hear motions by Dr. Wecht’s attorneys. Yet U.S.
Attorney Buchanan has not brought charges against at least two Republican officials who,
like Dr. Wecht, are alleged to have misused their office staff”
While the above cases are by no means an exhaustive list of all alleged instances of
politically-motivated prosecutions or lack of prosecutions, we believe that learning the truth
about these three prosecutions is an important step in the process of restoring the Department of
Justice’s credibility and reputation for impartial justice.
We appreciate your attention to this matter and ask that you provide these documents to
us by Tuesday, July 27, 2007 at 10:00 a.m. Please direct your responses and questions to the
staff at the House Judiciary Committee office, 2138 Rayburn House Office Building,
Washington, DC 20515 (tel: 202-225-3951; fax: 202-225-7680).
Paula KqqA, Motive of Wecht deal talks questioned. Pm. POST-GAZETTE, June 7, 2007.
23
Id.
U.S. V. Wecht, 484 F.3d 194, 198 (3d Cir. 2007).
Thomas J, Farrell, Op-ed, Our U.S. Attorney should resign. Pm. POST-GazetTE, Mar. 20, 2007.
400
The Honorable Alberto R. Gonzales
Page Seven
July 17,2007
Sincerely,
Member, Committee on the Judiciary
Linda T. Sanchez ^
Chairwoman, Subcommittee on Commercial
and Administrative Law
Dcu-n^
Artur Davis
Member, Committee on the Judiciary
cc: The Honorable Lamar S. Smith
The Honorable Chris Cannon
401
JOHN CONVEHS. JR.. Michigan
CHAIRMAN
LAMAR S. SMITH, Texas
RANKING MINORITY MEMBER
ONE HUNDREDTENTH CONGRESS
ConsFESs of tliE flnitEd ^tatEs
House of 'REprESEntatiOES
COMMITTEE ON THE JUDICIARY
2138 Rayburn House Office Building
Washington, DC 20515-6216
(2021 225-3951
htlp://www.liouse gov/judiciary
F. JAMES SENSENBRENNER, JR., '
HOWARD COBLE, Nona Carolina
ELTON GALLEGLY, CalitOfnia
BOB GOODIATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNQREN.Calirornia
CHRIS CANNON, Utah
DARRELL E, ISSA. CalTloraia
TRENT FnANKS,Arl2ona
LOUIE GOHMERT, Texas
JIM JORDAN, Ohio
September 10, 2007
The Honorable Alberto R. Gonzales
Attorney General of the United States
US. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
Dear Mr. Attorney General:
We are writing to follow up on our July 17, 2007, letter concerning the issue of selective
or politically-motivated prosecutions, in light of Principal Deputy Assistant Attorney General
Brian A. Benczkowski’s letter to us of September 4, 2007. We were very disappointed that
Mr. Benczkowski largely rejected our request for documents that would shed light on the
Department’s decisionmaking in three cases where concerns have been raised that prosecutorial
decisions were influenced by improper political factors: United States v. Don Siegelman. United
States v. Georgia Thompson , and United States v. Cvril Wecht . We urge that you immediately
take steps to ensure that the Department fully cooperates with our request, so that these troubling
concerns about political influence in prosecutorial decisionmaking and the reputation of the
Department of Justice can be effectively resolved.
Our request does not arise in a vacuum. The Committee’s investigation into the firing of
nine U.S. attorneys in 2006 has surfaced substantial evidence that improper political pressure has
been brought to bear on the U.S. Attorney corps, and that prosecutors who did not serve the
Administration political goals were fired while others who were dubbed “loyal Bushies” were
retained.’ Siuce our original letter, even more evidence has come to light showing an aggressive
effort run by White House political operatives to use the machinery of government for partisan
advantage and establishing that top members of your staff attended political briefings led by Karl
‘ July 24, 2007, Memorandum from Chairman Conyers to Members of the
Committee on the Judiciary re Consideration of Report of the Refusal of Former White House
Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to Comply With
Subpoenas By the House Judiciary Committee.
402
The Honorable Alberto R. Gonzales
Page Two
September 10, 2007
Rove? Also in the time since our original letter, public concern and information about the issue
of selective or politically-motivated prosecutions has only increased?
Against this backdrop, the Committee has identified a number of cases where substantial
questions of political interference have been raised. Of these cases, we have so far limited our
request for information to only the three matters referenced in our July 1 7, 2007, letter. Each of
these cases raises substantial, particularized concerns about the role of politics in the exercise of
prosecutorial power and whether any of these defendants were targeted for partisan reasons.
Needless to say, it is extremely disappointing that the Department has responded by producing
only a handful of relevant documents and by focusing its energies on arguing the facts of these
cases.
The few materials that the Department has provided are clearly insufficient. You have
offered approximately 350 pages of public pleadings, but even this production has been limited
to pleadings that represent the Government 's position in those matters. We understand that the
Committee may obtain publicly filed documents from the courts without the Department’s
assistance, but we question the value of the Department selectively providing those few pleadings
supporting its arguments but not providing any responsive pleadings or court decisions that
present contrary arguments and facts.
Far more important, Mr. Benczkowski’s blanket refusal to provide materials deemed
“deliberative” such as prosecution memoranda, even as to closed matters, and his refusal to
provide any non-public materials concerning matters that have not been closed, is unacceptable.
While the Committee appreciates the sensitivity of these materials, and we are open to reasonable
accommodations of those concerns, as described below, we believe it is improper to simply
declare such materials off limits, particularly in view of the substantial questions that have been
raised about the Department’s action in these cases. While Mr. Benczkowski’s letter recites the
Department’s “longstanding” position, relying on a statement by the White House counsel made
in 2002, in fact Congress repeatedly has obtained prosecution memoranda and other deliberative
materials of the Department regarding both open and closed criminal matters during past
^ See Solomon, MacGillis & Cohen, How Rove Directed Federal Assets for GOP
Gains, Washington Post, August 19, 2007; Eggen & Kane, Gonzales Now Says Top Aides Got
Political Briefings, Washington Post, Aug. 4, 2007.
^ See, e.g. . Savage & Hamburger, In Chertoffs Record, Shades of Politics, Los
Angeles Times, Sept. 4, 2007; Editorial, Selective Prosecution, New York Times, Aug. 6, 2007.
403
The Honorable Alberto R. Gonzales
Page Three
September 10, 2007
Congressional investigations." Indeed, this Administration ultimately agreed to make available to
Congress prosecution memoranda that were at issue when the White House counsel made the
statement quoted in Mr. Benczkowski’s letter. Such documents, which dealt with prosecution
decisions in murder cases and related issues, and which the Department claimed were related to
ongoing litigation, were made available to Congress despite being subject to a formal claim of
executive privilege by President Bush, on terms negotiated by then- Assistant Attorney General
Michael Chertoff and the then Government Reform Committee staff.^
Other examples are plentiful. As early as the Teapot Dome scandal in the 1920s, under
Attorney General (and later Chief Justice of the United States Supreme Court) Harlan Stone, a
Senate Select investigative committee received broad access to Department files, including
investigative reports, recommendations for prosecutorial action, and testimony of investigating
agents and attorneys.^ A great deal of deliberative and investigative material, including
“predicate documents relating to the opening of the investigation and prosecution of’ an EPA
official, were made available to this Committee during Chairman Rodino’s investigation into the
Department’s role in the EPA’s decision to withhold documents fi'om Congress, which helped
lead to the citation of EPA Administrator Ann Gorsuch Burford for contempt of Congress.’ And
in the aftermath of the Ruby Ridge shootings. Congress received core deliberative materials
" Statement of Morton Rosenberg, Specialist in American Public Law,
Congressional Research Service, Before the House Committee on Government Reform
Concerning The History of And Basis For Congressional Access to Deliberative Justice
Department Documents, Feb. 6, 2002 (containing a detailed Appendix listing “18 significant
Congressional investigations of the Department of Justice which involved either open or closed
investigations in which the Department agreed to supply documents pertaining to those
investigations, including prosecutorial decisionmaking memoranda and correspondence, and to
provide line attorneys and investigative personnel for staff interviews and for testimony before
committees”).
^ Everything Secret Degenerates: The FBI’s Use of Murderers As Informants, Third
Report of the Committee on Government Reform, 108^^ Congress, 2d Session, Report 108-414,
Vol. 1, at 132-33.
^ Investigation of Hon. Harry M. Daughtery Before the Senate Select Committee on
Investigation of the Attorney General, vols. 1-3, 68* Congress, 1 st Session, 1924; Rosenberg,
supra, at CRS-4 to CRS-7.
Rosenberg, supra , at CRS-7 to CRS-10.
404
The Honorable Alberto R. Gonzales
Page Four
September 10, 2007
reflecting the Department’s prosecutorial and other decisions arising out of those shootings.®
There is thus ample precedent for production or review of the materials requested by the
Committee.
Let us be clear. We have not prejudged the outcome of our investigation. However,
without meaningful cooperation from the Department, including access to materials that would
reflect the decisionmaking process that led to the indictment of these individuals, it will simply
be impossible to make fair judgments or to allay suspicions that improper factors played a role in
these and other cases. Accordingly, we must reiterate our request for access to relevant materials
that you have so far declined to provide, such as: (i) case impression and prosecution or
declination memoranda, including drafts, and notes or emails discussing same, (ii) indictment
review files/memoranda, and notes or emails discussing same, (iii) discovery correspondence,
(iv) FBI 302s and other witness interview records or memoranda, (v) witness immunity
agreements and Gielio materials, (vi) Bradv materials, and (vii) any other emails or documents
discussing the strengths, weaknesses, merits, wisdom, or political implications of these
prosecutions.
As stated above, we recognize the sensitivity of some of the requested materials, and
appreciate the Department’s interest in preserving the confidentiality of its internal deliberations
on prosecution matters. To accommodate those concerns, we are prepared to agree that, instead
of the Department producing all the requested materials to the Committee, Committee members
and staff would review the most sensitive materials on Department premises, assuming mutually
agreeable conditions of reasonable access can be arranged. Such procedures have been used in
the past for sensitive executive branch materials, such as some internal Department investigation
records relevant to the U.S. Attorney firings and White House materials relevant to the death of
Corporal Pat Tillman and the Administration’s public statements on that subject. We also are
open to your offer of a briefing from U.S. Attorney Biskupic regarding the Georgia Thompson
prosecution, but such a briefing would not be productive until the Committee has had a
reasonable opportunity to review the documents and memoranda possessed by the Department
that are relevant to that case but which have not been produced.
As a primary reason for declining to provide the information that we have requested,
Mr. Benezkowski’s letter states that ‘We want to avoid any perception that the conduct of our
criminal investigations and prosecutions is subject to political influence.” This concern should
® Ruby Ridge: Report of the Subcommittee on Terrorism, Technology and
Government friformation of the Senate Committee on the Judiciary, 104th Congr., Sess.
(1995).
405
The Honorable Alberto R. Gonzales
Page Five
September 10, 2007
lead to precisely the opposite result. Due to the events and revelations of recent months, the
“perception that the conduct of our criminal investigations and prosecutions is subject to political
influence” already exists, and a refusal to cooperate with the Committee’s investigative efforts
can only reinforce it. To carry out the pledge that you and others have made to help move the
Department forward past these difficult issues and begin the long process of restoring the
Department’s reputation and credibility, we urge you and all present and future Department
officials to cooperate with our efforts, and to provide the materials wc have requested on a
voluntary basis.
Thank you in advance for your prompt cooperation.
Sincerely,
Artur Davis
Member, Committee on the Judiciary
Tam^I
Baldwin
Member, Committee on the Judiciary
cc: Hon. Brian A. Benezkowski
Hon. Lamar S. Smith
Hon. Bobby Scott
Hon. Chris Cannon
Hon. J. Randy Forbes
SEi^^TE 0!f<BeE ^/CO
Joige dk Castro 0<>nt
Senator at Large
CAaxman-
Committu m Glides and Cadendar
Committxe on t/iejiidicmy
Committee on %(umdpaiand JirtandaL^airs
October 11. 2007
Mortorable John Conyers, Jr,
Chairman
Committee of the Judiciary
U. S. House of Representatives
2426 Rayburn Buiiding
Washington, DC 20515
Dear Mr. Conyers:
This is to respectfully submit to you our findings related to the acts of Mr. Eduardo Bhatia,
Executive Director of the Puerto Rico Federal Affaire AdtnWstration in Washington. D.C. (rieteinafter ‘Mr.
Bathia') pertaining to the appointment and consideralion of Ms. Rosa Emilia Rodriguez as Attorney General
for the District of Puerto Rico (hereinafter "Ms. Rodriguez*).
As Chairman of the Committee of the Judiciary of the Senate of Puerto Rico, and under the
instructions of Mr. Kenneth McClintock, President of the Senate of Puerto Rico, we evaluated the
participation of Mr. Balhia in the above referenced matter. We ixmduded that Mr. Bathia used his positton
and public fur>ds to attack the aforementioned appointment of Ms. Rodriguez.
Furthermore, we concluded that Mr. Bathia's ailadc was based pifely on political reasons and not
based on any findings of wrongdoing by Ms. Rodriguez, who. as a matter of feet, has a long and impeccable
trajectory as a public ofticial.
For the above stated reasons, we respectWy ask you to take our findings into consideration when
evaluating the complaint filed by Mr. Bathia at your office to investigate the acts of Ms. Rodriguez through
the ongoing investigation of Governor Anibal Acevedo-Vita in reiatior to alleged illegal campaign funds
received by Mr. Acevedo-Vila.
For your files and evaluation, attached hereto please a copy of our final report on to this
matter.
Thanking you in advance for your fime and attention to this mailer, we remain.
'P.O. ‘BoJi3Q23431 San Juan, Puerto Jiico 00902^3431 TeLs. (787) 722~1231, 722-4019
407
AFFIDAVIT
Rod(;rick F. Mollison, first duly sworn on oath, deposes and says:
1. That he is an atrorney at law, licensed to practice in the State of Illinois since November
6, 1Q7.3, and the Unitecl Stares district Courts since December 11, 1973, that he is one of the
attorneys of record for Louis Marin, a co^defendant in United States v. Marin, Palivos, et al., 00
CR 1065, in the Northern District of Illinois.
2. That on or ahoift Novemher 5, 2002, as counsel for Louis Marin, affiant caused to be
prepared and filed in Marin's behalf a motion to dismiss the indictment agaiitst Marin and a
motion to suppress certain testimony taken from Marin, by government agents, on September 19,
2001, in the form of a written statement.
3. Tliat commencing December 2002, through February 2003, affiant had a number of
telephone conversations with Mr. Eric Wilson, an assistant U.S. Attorney concerning the Marin
case, in particular, a conversation concerning the tlien pending motion to suppress,
3. That on or about said date, Mr. Wilson stated to the affiant that the affiant should be
indicted for obstructing justice for filing the motion to suppress, whereupon affiant asked Mr.
Wilson if he proposed to prosecute his case against Marin by indicting the defense lawyers,
whereupon Mr. Wilson repeated that the affiant should be indicted for obstructing justice if he
proceeded to hearing on the motion to suppress.
4. A number of di.'sciissions ensued subsequently between the affiant and Mr. Wilson
concerning the Marin case, and the direat of indictment was not re[>eated by Mr. Wilson, nor ha.s
the affiant ever been indicted for obstructing justice.
408
Further affinnt snyeth nought, save that this affidavit is made at the request and in
l)chalf of, Mr. Peter Piiiivos, a co-dcfcndaut with Louis Marin.
RODERICK F. MOLLISON
Subscribed and Sworn to
before me this day
of January, 2006,
Country of Greece)
Province of Tripoli)
AFFIDAVIT; j
I, Peter O. Bouz^nis, swear that the following is true and accurate! |
1, 1 have been living in Europe since 11/14/2000 and 1 am currently a resident of Tripnii
Greece. I
2. I have filed with the A,R.D,C. complalma against Mr. Wilson, Mr. Hogan and Mr. Samuels
because they have committed prosecutorial misconduct an have violated the attorney ethics
Code by lying. Ilte A.R.D.C. has started inve^gations against them their case pumbers
respectively 04 Cl 4214, 04 Cl 42 1 5 and Cl 04 4216.
3. That on 4/24/96 I purchased the Waterfalls Restaurant and property from JACPG Inc. and its
three shareholders Chris Katris, John Katria and George Pdivos (hereinafter the “Waterfolls
transaction’^. I
4, I'het the three attorneys who represented me during the Waiertalls transaction were Nick
Black (See the attached Exhibit 1, SBA attorney discJosure sheet that I uve die
Moneystore), David Qeocaris and Dean Kalomallanos. 1
3. The person who put together the whole Woterfailfi transaction was Nick Black. Nick Black
had previously rqiresented me and my family in several other real estate and restaurant
transactions.
6. Attorneys Black and Kalamadanos did not disclose to the sellers or to me that they were
representing both parties in the Waterfalls transaction.
7. That the 3/1 4/96 Moneystore oonunitmeni letter to me does not stare two things: ;
A. That 1, Peter Bouzanis hod to inject 398,000 USD. This would have violated SBA rules.
It just states that 'Tt” must be iujected.; and, |
B. 'Ihat this letter does not state in words or meaning that ray money had to be
“unencumbered" or not borrowed. This would have been violated SBA rules. (See
attached Exhibit 2, 3/1 4/96 Moneystore commitment letter). I
8. 1 closed on the Waterfalls reataurant on A{nil 26, 1$^.
9. Sometime after the closing a criminal investigation was started. Criminal subpoenas were
issued 111 October of 2000, ]
10. One week before 11/14/00, 1 met with Nick Black. At that time, Nick Black told me that ha
had received a subpoena to produce the Water&lls tranaaction documents, and that he had
with him a copy of the Waterfalls documents which he told me he was going to produce to
the government. Nick Black also told me that he wanted me to have a copy of the same
documents that he was going to produce to the government because I wae his client.
Thereafter, Nick Black gave me 73 pages of documents. 1 sent a copy of all these documents
prior to trial to the government. Two Iwid written notes tliat were questioned hy the
government when they were created were part of these documents when Nick Bl^k gave
me the file.
1 1. On September 6, 2001 and September 7, 2001 A USA Wilson. Agent Heinzer apd Agent
Bray took my proffer in London, England. At that time, in a one on one conversation, AUSA
Wilson told me that he wanted me to give a false statement. AUSA Wilson told me that ifl
agreed to give that false statetnent, .1 would at mioimum get probation. Thereafter, AUSA
Wilson directed me to say the followdog falsehoods • that George Palivos put the yaterfalls
transaction together, when in fact, it was Niek Block; that Peter Palivos was involved in the
Waterfalls ' transaction, when In fact, Peter PalivM was not involved in anything;, that the P
410
in JACPG Inc. stood for Peter Palivos, whan in fact I did not know what the P in JACPG Inc
stood for; that the Monaystore did not know that I was borrowing the down paymenumoney
from the Sellers, when in feet, the Moneystore knew that I was borrowing the down payment
money flom the Seilers, that the Waterfalls uansaction involved a fictitious dispute, when in
fact, there was a legitimate dispute botweea me and the Sellers; and that after the Waterfalls
tran.SBCtion closing 1 gave to Peter Palivos a $25,000 check that he had loaned to me, when
In fact, I gave a signed S2S,00Q blank check to George Palivos for payment of !|i25,000 in
Waterfall inventory. I
]2. That the Waterfklls trial started on September 16, 2003, prior to the start of the Waterfalls
trial, my Greek attorney, Sotirios Bregiannos , sent to die U.S. Department of Justice and
AUSA J^gan a copy of all the Waterfalls documents that 1 had in my possession as of one
week before November 14, 2000 the date that I left the USA, In the documepta Mr.
Bregiannos scat the US Justice Department and Mr. Hogan there were copies of two
hondvmtten notes that Nick Black had given to me on our meeting of one week before I left
for England, on November 14, 2000. These two notes are pages 5 and 6 of the 73 page ftle
that Black gave me. (Attached please find exhibit 3, copies of page S and 6 of this file and
my anorney’s letter to the US Justice Department in Washington dated Sqitember 8, 2003).
13. In the middle of the Waterfalls trial, on Sqrtember 26, 2003 at 23:56 and 23:58 hours, 1
received two telephone calls from AUSA Hogan. Thereafter, I had two conversations with
AUSA Hogan. 1110 two conversations lasted 59 seconds and 10:13 minutes respectively,
llioae two telephone eonvenationa are confirmed by a phone bill I received from lha 'Forth
Net' Telephone Company. (A copy of that phone bill is attached as exhibit 4). j
14. During the second 9/23/03 telephone convoxatioo which lasted 10:13 minutes, 1 called
AUSA Hogan at the US number, 1(312) 886-3389 which AUSA Hogan identified as his
phone number. During our I0tl3 minute telephone conversatioo, AUSA Hogan emphasized
that our conversation was “completely confldentia]’*. I asked AUSA Hogao whart did
'completely confidential' mean. AUSA 1-logan responded that 'completely confideotial'
meant that he was not going to disclose our telephone conversation or the substance of our
conversation to anyone. Therefore, AUSA Hogan told me that if 1 agreed to return to the
United States in order to 'cooperate and testify* in the Waterfalls trial, I was not to tell my
Greek attorney, the judge, the Jury or any of tlm defense attorneys about our telephone
conversation. Thereafter, during that same (xmvematlon AUSA Hogan explained toi me that
'cooperation' meant that I had to return to Chicago so that 1 could testify falsely about Peter
Palivos, who would be the focus of my 'coopmution.' AUSA Hogan explained to me that If I
agreed to say that Peter Palivos was involved in the Waterlalls transaction, whop in fact,
Peter Palivos was not involved In the transaction, AUSA Hogan would recommend a 50%
downward departure at sentencing, which would guarantee me a lenient sentence of no more
than I2>18 months in prison. I informed AUSA Hogan that I would not lie u he wanted me
to lie, but, I was willing to give a truthftil evidence deposition from Greece via aatfllite. At
that point, AUSA Hogan told me “That wdll never happen. You have only two choices. -
either, return to Chicago end testify os 1 want you to testify or you should leant to like living
in Greece because I will not let you return to the United States", I replied that Twas not
going to lie. At that point, AUSA Hogan got upeet and he slammed the phone on me.
15. Thai I have not spoken to anyone from the U.S, Attorney’s Office since thei 9/26/03
telephone hang up.
16. That shortly after the Waterfalls trial concluded. 1 found out that AUSA Hogan made Nick
Black wisely testify that Nick Black created (he two handwritten notes, which are pages 5
and 6 of the attached ftle Black gave me, on November 14, 2000 or November 15, 2000. Mr.
Black's aforesaid trial testimony waa false. The same two handwritten notes ware in the file
411
that Kiak Black gave to me one week hafare 1 left the USA on November 1 4. 3000 (A da>' 1
remambec well beoauee it was my birthday). 1 had copies of the same two notes in my
possession, from then to the present. AU$A Hogan and the U.S. Justice Department knew
this since my actomey sent them s copy of tfiie Ala prior u> the trial's beginning.
17. That sinco 1 refused to flilsely testify a^inet Pesar Pallvos. AUSA Hogao bee repeatedly
porizayed me as a fugitive who Is avoiding juaticc. lliat poitraysl is Inaccirau because 1 am
willing to try my case, Therefore, thru anomey Sodrioa Breglannoa, I have asked the Greek
Justice Department to tequest that the IJ.S. Justifie Department tiansfot nty case to Greece
under the Hallenlc-USA treaty on Mutual Legal Assistance in Criminal Matters. 1 have
Informed Mr. Hogan and the Juetlce departmttit of the above.
1 8. After the Waterfalls ease la transferred to Oieaea, 1 will proceed to trial. I want my case tried
in Greece because prosecutors Eric Wilson end Bill Hogan have eraatad ilhlse facts, icrimes
and have lied to the grand jury, witneaaaa, Tu^ Lefkow and Jury. These proseeutors have
also caused witnesses to lie under osth, Tbarcfoxo unless and until thetie proeeeutors are
held accountabie for their lies, I do net believe 1 can have a fair Trial In the United States.
412
STATE OF ILUNOIS )
COUNTY OF COOK )
AFPiDAvrr
Peter Kopsaftis, after iir^ being Kfuly swocn under oath, dqjoses and states as follows:
1 . T reside at 1 47 Algonquin Road, Bamngton Hills, minois. I reside with my wife and son.
2. I am the President of Paaiis &. Associates. Paaris 8c Associates is involved with real
estate development and tinanctal consultmg. T have been in the real estate financing
business ibr approximately 20 years.
3. I served in the United States Anny Reserves from approximately 1 96& to 1 974. 1 was
honorably discharged. At the tune of 09 discharge, my rank was sergeant
4. I am an acquaintance and friend of I^ier Palivos for approximately 1 1 years. 1 am
familiar with the criminal charges brought against Peter Palhws. I have asked Peter
Palrvos on a munbes- of occasions wbat happened. Peter Palivos has always told me that
he was not involved with anydnng. and that he was framed. In my opinion, Peter Palivos
is an honest and sincere tnan. During all of the years that I have I^wn Peter Palivos, he
has never lied to me or to anybody I know.
5. I am an acquaintance and friend of Nick Black for over 25 years. I am also a distant
cousin of NkK Black’s wife, hbria Black. I am familiar with the criminal charges
brought against Nick Black. I have asked Nick Black on a number of occasions wbat
happened. During my first conversation widi Nick Black, which occurred in suouner,
2002 alNick Black’s Mega Devdoproent Corporation’s office near Lawrence Avenue &
Milwaukee in Chicago, Nick Black {old me that he did not blame Peter Palivos or George
Palivos for anything. I specifically asked Nkk Black who was to blame for his problems,
ivfick Black said that his partner. Dean Kalamatianos, was responsible for all of his
problems. Nick Black did not provide wy details.
6. During the 2002-2003 winter, 1 had a second conversatioa with Nick Black. That second
conversation also took place at Nidc Black’s Mega Development Corporation office near
Lawrence Avenue 8t hffiwaukee in Chica^. The meeting started inside of Nick Black’s
office, and it continued on the rooftop of the buildbg. We went to the rooftop because
Nick Black is a smoker and he wanted to go to foe rooftop to have a cigarette. During this
second conversation, Nick Black admitted to me for a second time, that Peter Palivos was
not to blame for anytlung, and that Peter Palivos was not involved with anything. I then
a&ked Nick Black why a newspaper article reported that he was cooperating against Peter
Palivos if Peter Palivos was not to blame ten anything, and if Peter Palivos was not
involved with anything. Nick Black responded that he bad no choice because the
government had put a lot of pressure on him to lie about Peter Palivos. Nick Black also
said that he did what he hadto do to protect himself so he had to He about Peter Palivos. 1
1
413
asked Nick Black if he felt guUiy.for what he was doing. Nick Black said that he felt
guilty so he was talking to his attorney ^ut going against (he government because he
was accusing the government of prosecutorial miscocducL 1 asked Nick Black what that
oieanL He said that the government had deceived him and his attorney. This was done to
Force him to lie about Peter Palivos,
7. I was told by Nick Black io approximately 1996 that he had tax problems with the
government, and that be owed tax money to the government During the two
conversations that I had with Nick Black in 2002 and the winter of 2002-2003 [asked
Nick Black if the tax problems he bad in 1996 had any connection to the new criminal
charges. Nick Black said “No comment”.
Z. i was told fay Nick Blapk and Dean Kalamadanos in approximately 1996 that Nick Black
was cxpenencing Hnancial prablems. T1»e financial piobleins were connected to a
rcstaurantdealthatNrckBlackand Maria Blade were involved within 1996.
9. Until the winter of 2002-2003 I was always closer to Nick Black than 1 was to Peter
Palivos. This is because I have known (tick Black longer; Nick Black has provided fiee
legal advise to me over the years; and [ am adistant cousin of Nick Black’s wife.
However, my feelings and respect for Nick Black changed dramatically after Nick Black
to oie that he was lytng about Peter Palivos because the government had put
pressure on him to lie about Peter Palivos.
10. Oo Sunday nig^t, SejMember 28, 2003 at ai^roxunatcly 6;30 pjiL I was letuming home
tiom visiting toy parents. As I drove into my driveway. I noticed that an unkaown
automobile was waiting for me near my home’s driveway. As 1 drove down noy
driveway, which is approximately 2S0 6xt long, the unidentified automobile followed
me. 1 parked my car in fioot of my borne. The unknown vehicle parked across from my
automolnle. Two people got out that vehide. The driver of that vehicle was a male
who was rqtproximately 5*6”, 21 Olbs, bold and wearing glasses. The passenger of the
vehicle was a female who was approxlnuudy 5*9”, 120 lbs. The woman was wearing a
jacket The woman opened her jacket She {mlled out some identification. At the same
time, 1 saw that the woman had a holster and gun. The woman said, “We are both FBI
aunts’*. The woman showed me her FBI ide&tificatioo. The woman's identilicatioR
confirmed that she was with the FBI. Her fust name was 'Julie*. The man never showed
me any identificatioiL However, foe woman agent referred to him as agent Thomas*.
1 1 . The woman FBI agent began interviewing roc. She asked me numerous questions about
the two statements that I had previously given about Nick Black and Peter Palivos. 1
confirmed that the two statements that I gave contaioed truthful infonnation. I also
corroborated the accuracy of specific infomi^on contained in the two statements. At that
point, the male FBI agent asked me tf anyone ixessured me to give (he two statements. I
responded that nobody pressured me to ^ve the two statements. The interview with the
two agents lasted appraximately 1 5 rainutes. Both agents were courteous throughout the
interview. At the conclusion of the ui(er>new, FBI agent ‘Thomas* asked me to keep (he
interview confidential. Thereafter, the two agents got into their car and th^ drove away.
2
414
12. While the two (edsisl agents interviewed me, ] was alone and it was dark outside. Aihsr
the agents left, I lespected Agent Thomas* request, I did oot tell anyoae details aboiit
being interviewed oo the evening of Septeznb^ 28, 2003.
1 3. In November, 2003 1 ^ke to Peter Palivos. At that time, Peter Pab'vos asked me if any
agents interviewed me during his trial 1 mid Peter Palhros about happened on the
evening of September 28, 2003. 1 did this because I wanted lobetrutbiul whh Peter
Palivos.
14. In January, 2004 1 spoke to Peter Palivos again. A1 that time, Peter Palivos asked me if 1
would give an aftidavit to his attorney or investigator. I said 1 would.
3
415
mghthax 2/4/2Q04 3:56 PaGE 2/4 ftishtFax
STATE OF ILLINOIS )
)3S.
COUNTY OF COOK )
AFFIPAVtT_QF_ DEMETRtQ.S_L.J<OZQMtS
Oemetnas L. Kozonis. after bein 9 under oath, deposes and states the
following:
1 . I reside atf 71S Sunset Lane, Banno^bum, Illinois. I live there Mth myvvife
andTdur children.
2. i am president of Delko Construcfl'on. Co.', Inc., which has its hcaUqu^ncis
at 4843 North Milweukee Avenue, Chicago, Illinois. I hove been president of Dclko
Cenetrueticn Co., Ire. since tdSl.
3. I have i baehelor^s degree and masters degree in Engineering from the
University of llllneis at Chicago. I also taught engineering at the University of Illinois st
Chicago from 1974 thru 1977.
4. Nick Slack applied for a Jobvihlh Mega Realty, Ine, in February 2002 while
Nick Black wae still a licensed attorney. Mega Realty, line, is affiliated with Dclko
Construetian Co., Inc.
5. lnFel3ruary2002lconductedsjobinteivsawwithNici(aiack. Duhngthatjob
interview! asked Nick Blad^ about a newspaper artcie that I had read about Nick Black
being indicted and about Slack cooperating against Peter Palivos, Atthatbma, Nick Black
told me the manerinvolvea a real estate case IhatNick Black had handled where he made
only $4,000. Also, theta loan was notpaidoffands criminal Investigation resulted. Nick
Block also stated to me that Peter Palivos was not involved with ttnyihing but the
416
FtightPax
2>4/200i 3:5a PaGE 3/4 RightPax
government had placed irrmensc preesut'e ^ NI4( Biack to implicate Peter Poitvos. He
said he dealt enlyvMih Peter's brother, George Palivoa. He did not say, however, whether
Peter Pelivos was guilty or not guilty.
6. I hiredNick Slack as preaderttofMega Really, Inc. even (hough i had some
reservationsbecauseNiekSlabtwasund.ertndictmenl. I did this because Nid< Black had
beon my friend and attorney for many years. Sometime later, the pending criminal
Indictment came up a second time irt another converesdon between me and Nick Biack,
At that 4me, for the second time. Nick Black said to me that Peter Pallvos was notinveived
with anything and that the government had placed immense pressure on Nick Black to
implicate Peter Palivos, Hed^dnotexp!alnwhat'’anything"me^ntr^or didhe soy that what
he (Old the government ws$ false. During the second conversaHon Nick Biack also told me
he wantsd to recant his testimony because the government had misled him and hli
attorney, Slliot Samuels. At that pdntNIck Black and I set up a meeting with Black’s
attorney, Elliot Samuels, in order to discuss Vie matter.
7. Nick Slack. Elliot Samuels, and I met. N)ck Black told Elliot Samuels he
wanted to recant. Nick Black also told ElKot Samuels that hs was angry at AUSA Wilson
and the agents becauss they lied to Nick Sladt and Elliot Samuels about what seme
forensic test results showed.
S. Elliot Samuels raid Nick Black and me that he would prepare a motion for
Nick Black to reeant. Thereafter, (he meeting ended.
9. Sometime later, on February 13. 2003. ElliotSamuels sent Nick Black r letter
which was consistent with soma of the direction that Nick Black had given to Elliot
2
417
Kightf
2/4/2004 3:58 PaUE 4/4 Rlghtfax
Samiidls. Nldc B|a«k recoiv^a the ietter. Ther«aft4f, Nick Black gave a copy oflfic lettei'
tome. I kept a copy of that letter. (AnscKed as Ex A)
to. Elliot Sarmiels refused to file a mMion to recant bscause he felt that Nick
Black Would lose his “deal with the government.'' Thereafter, during the spring of 2003 I
went with Nick Black to meet with attorney Robert Rasda for e second oplniort.
1 1 . Bob Rascia, Nick Black, and I met. Nick Black told Bob Rasga that Nick
Black wanted to recant, Bob Rascia did some research and told Nick Black and ma that
if Nick Black recanted Nick Slack would lose his “deal with the gaven^ment.", Also, Bob
Rascia told Nick Black artd me that Nick Black could face additional charges for perjury
because Nick Black had given testimony to the grand jury while he was unelor onth and
Nick Black could not change that sworn testimony. Thereafter, Nick Black told me ho was
not going to recant because he did not want to going jail-
12. I always told Nick Black to tell the truth. I have lost respect forNidc Black
because Nick Black is not wiiling to recanteven though Niek Black admitted to me on two
different occasions that Peter Pativc» was t^t involved with enything.
TOTftL P.04
418
STATE OF ILLINOIS)
)
COUNTY OF COOK)
AFFIDAVIT
Barbara Goraez-Wood, after being duly sworn under oath, deposes and states as follows;
1) She resides in the Qiicago area.
2) From 1999 through 2000, she worked as a legal secretary for the Law Office
of Nicholas Black. While working for Nicholas Black, Mr. Black used legal
pads in their entirety and all ink pens in their entirety as well. Nicholas Black
never kept an old valise under his desk.
3) Nicholas Black did maintain his diaiy / calendar books for many years. Those
books, which were black in color, were stored in a back room.
419
420
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Los Angeles Times
June 18, 2007 Monday
Home Edition
Attorney firings echo in courts;
The divisive dismissals under Gonzales are being cited to challenge the motives of
federal lawyers in legal cases.
BYLINE: Richard B. Schmitt, Times Staff Writer
SECTION: MAIN NEWS; National Desk; Part A; Pg. 1
LENGTH: 1478 words
DATELINE: WASHINGTON
For months, the Justice Department and Atty. Gen. Alberto R. Gonzales have taken
political heat for the purge of eight U.S. attorneys last year.
Now the fallout is starting to hit the department in federal courtrooms around the country'.
Defense lawy'ers in a growing number of cases are raising questions about the motives of
government lawyers who have brought chai'ges against their clients. Jn court papers, they
are citing the furor over the U.S. attorney dismissals as evidence that their cases may
have been infected by politics.
Justice officials say those concerns are unfounded and constitute desperate measures by
desperate defendants. But the affair has given defendants and their lawy'ers some new
energy, which is complicating life for the prosecutors.
Missouri lawyers have invoked the controversy in challenging last year's indictment of a
company owned by a prominent Democrat, on suspicion of violating federal wage and
hour laws. The indictment, which came two months after the owner announced that she
was running for political office, was obtained by a Republican U.S. attorney who also has
been criticized because he charged workers for a left-leaning political group on the eve of
the 2006 midterm election.
A lawyer in a child pornography case recently defended his client at a federal trial in
Minnesota in part by questioning the motives of the Republican U.S. attorney, who has
come under scrutiny in the congressional investigation into the prosecutor purge.
Lawyers for a former county official in Delaware who has been accused of coiTuption
asked a judge in early May to allow them to subpoena the Justice Department and White
House for documents to see whether political motives factored into charges being brought
against the official. They cited the brewing controversy inside the Beltway.
"Tliose revelations dramatically reinforce the reasons to believe that considerations
beyond mere law enforcement are behind this prosecution," the lawyers wrote.
480
The defendant, a once up-and-coming Democrat, was being prosecuted by the U.S.
attorney in Wilmington, a Republican appointee.
In an inch-thick response, the U.S. attorney said nothing could be further from the trath.
and said the attacks were "sullying the reputations of every prosecutor and law
enforcement officer involved in this case," including more than a dozen career
prosecutors and agents.
U.S. District ludge John P. Fullam eventually sided with the government, saying that if
there were any improper motives for bringing the case, they would become evident at
trial, in cross-examination. He also noted that the decision to bring the indictments was
made in May 2004 - "long before Mr. Gonzales became attorney general." (Gonzales'
swearing-in was in Febmaiy 2005.)
The defendant subsequently pleaded guilty to bank fraud.
The firing of the eight prosecutors last year has drawn attention because once appointed,
U.S. attorneys traditionally have been allowed to seiwe until they resign or are ousted
because of misconduct. New administrations routinely make changes as well.
Gonzales has defended the dismissals as justified for performance reasons, saying that
some of the prosecutors failed to follow administration law-enforcement priorities.
But Democrats say there is evidence that the dismissals were part of a Bush
administration effort to affect investigations in public corruption and voting cases that
would assist Republicans. The probe has also shown that politics may have played a role
in the hiring of some career Justice employees, in possible violation of federal law.
The controversy has drained morale from U.S. attorney offices around the country. And
now. legal experts and former Justice Department officials say, it is casting a shadow
over the integrity of the department and its corps of career prosecutors in court.
There has long been a presumption that, because they represented the Justice Department,
prosecutors had no political agenda and their word could be trusted. But some legal
experts say the controversy tlireatens to undermine tlieir credibility.
"It provides defendants an opportunity to make an argument that would not have been
made two years ago," said Daniel J. French, a former U.S. attorney in Albany, N.Y. "It
has a tremendously corrosive effect."
Defense lawyers in political corruption cases often argue to juries that the prosecution
was motivated by politics, especially when tire prosecutor happens to be of a different
political party than the defendant.
B. Todd Jones, a former U.S. attorney in Minneapolis, said such arguments are now
"given credence in the public eye because they are seeing that maybe there were political
decisions made. Any defense lawyer worth tlieir salt is going to say this is a political
prosecution that shouldn't have been brought."
The controversy may also be feeding anti-government feelings that many jurors bring to
cases, even when defense lawyers do not overtly try to exploit the situation.
"It has become part of the background that jurors have in their minds when they
deliberate," said Rep. Adam B. Schiff (D-Burbank), a foimer assistant U.S. attorney.
"Jurors will think, 'Gee. is there a political motivation for this? Is it being brought
481
because the U.S. attorney wants to cuiTy favor with the attorney general and keep his
job?' Corruption cases are tough enough to prosecute without having to defend yourself
against attack."
Lawyer Daniel Gerdts won an acquittal in federal court in Minneapolis last month for a
New York computer consultant who had been accused of bringing child pornography into
the United States on his way back from a business trip to Asia.
The defendant, who worked for a Japanese producer of adult videos, said he was hired to
set up Web pages to market the videos and to search the Internet for pirated copies. He
conceded he might have inadvertently downloaded child pom in the process of doing his
job.
hr court, Gerdts said prosecutors had failed to exercise proper discretion in bringing tire
charges. During his closing argument to the jury, he suggested a reason, alluding to
published reports of upheaval in the office since Rachel Paulose had become U.S.
attorney in 2006.
Paulose is believed to have gotten the posting with the help of Monica M. Goodling, a
former Gonzales aide who recently testified under a grant of immunity from prosecution
that she "crossed a line" by improperly allowing politics to influence hiring decisions at
the Justice Department. Several senior prosecutors in the Minneapolis office resigned
their management posts to protest Paulose's leadership.
The effect of Gerdts' courtroom remark was unclear. Government lawyers objected, and
the judge told jurors to ignore the comment.
After the verdict, jurors said they did not believe the government's accusation that the
defendant had intentionally downloaded contraband files.
In Springfield, Mo., defense lawyers are seeking a court order for evidence of improper
contacts between former interim U.S. Atty. Bradley J. Schlozman and fonner Bush
administration official Asa Hutchinson about the indictment last year of a company
known as Managed Subcontractors.
Schlozman was questioned this month on Capitol Hill about his decision to obtain
indictments of some former voter registration workers for the liberal Assn, of Community'
Organizations for Reform Now, or ACORN, less than a week before the midterm election
last fall.
Managed Subcontractors had been the target of an investigation in 2002 by federal
immigration agents working for the Department of Homeland Security. But its attorneys
believed the case had gone dormant in the ensuing years.
Then, in June 2006, three months after his arrival as U.S. attorney, Schlozman secured an
indictment. The principal owner of the company. Robbyn Turney, had recently filed as a
Democratic candidate for the state House in neighboring Arkansas.
Hutchinson, who was then in a hotly contested race for governor of Arkansas, was
interested in the case because he was running on a get-tough-on-immigration platform,
the court filing contends.
After her company was indicted, Turney resigned as chairwoman of her local Democratic
Party and withdrew from the Arkansas House campaign.
482
Hutchinson, who lost his bid for governor, could not be reached for comment. In an
interview with the Arkansas Democrat-Gazette, he said there was "zippo" evidence
linking him to the indictment decision.
Thomas Carver. Turney's lawyer, conceded that seeking the court order "involves some
degree of speculation on our part because we obviously are not privy to the inner
workings of the U.S. attorney's office." But he said his client had a right to the
infoimation.
"One of the reasons to file the motion was to determine if there is any cause for alarm,"
he said. "We are not in a position to make accusations ... but we would certainly like to
know."
rick.schmitl(gTatimes.com
483
October 22, 2007
ALABAMA VOICES: Not political tool
By Artur Davis
This year, serious questions have been raised about the integrity
and even-handedness of the Department of Justice. An academic
study has documented that the Bush Justice Department and its
local branches have brought four times the number of cases
against Democrats that they brought against Republicans.
On Tuesday, the House Judiciary Committee will convene a
hearing on a question that has plagued the department for
months: whether partisan political considerations influenced the
prosecution of cases by local U.S. attorney's offices. As a lawyer
who toiled for four proud years as a federal prosecutor, I can think
of no scenario that would be more destabilizing to the
fundamental value of equal justice under the law.
One of the cases under review is the prosecution of former Gov.
Don Siegelman. Much of the press attention around this case has
centered on the explosive allegations of a lawyer with Republican
roots, Jill Simpson. She has claimed under oath that in late 2002,
she participated in a conference call in which a high-ranking
Republican bragged that the U.S. attorney's office run by his wife
484
would prosecute Siegelman; she has also testified that she was
told of direct intervention by the president's adviser, Karl Rove, to
prod the Department of Justice to approve an indictment against
the former governor.
To date, no one has offered sworn testimony to rebut Simpson,
who has twice made her claims under penalty of perjury.
It is true that the individuals whom Simpson links to a conspiracy
to prosecute Siegelman are not exactly rogues; to the contrary,
while they are all practitioners in the rough-hewn world of
Alabama politics, they are well respected and have never been
tinged by scandal.
Congress' efforts to prove or disprove Simpson, however, have
been thwarted by two roadblocks: Rove's steadfast refusal to
appear before Congress even though he is now a private citizen,
and the Justice Department's insistence that it will not disclose
any of the more than 600 documents in its possession regarding
Siegelman's case.
But Simpson is far from the only source of the suspicions around
the Siegelman case. There is the recent revelation in Time
magazine that the prosecutors who indicted Siegelman failed to
2
485
aggressively pursue allegations of illegal campaign contributions
against Republican officeholders, even though the source of the
claims, Lanny Young, was one of their two principal witnesses
against Democrat Siegelman.
While there is no proof whatsoever that Young was telling the
truth when he cast aspersions on a senator and a current federal
judge, the government's relationship with Young means one of
two disturbing things: either that the lead prosecutors in an office
run by a Republican were uninterested in claims that hit too close
to home, or that prosecutors did investigate enough to debunk
Young's other claims, but relied on his word against Siegelman
anyway. It is a basic ethical obligation that prosecutors refrain
from offering witnesses whom they believe are not credible.
In addition, one of Siegelman's former lawyers, the highly
regarded former U.S. Attorney Doug Jones, has told House
investigators that in late 2004, he was given strong hints that
federal prosecutors in Montgomery were leaning away from
bringing a case. Jones is expected to testify that later that year
one of these prosecutors told him that the Office of Public Integrity
at DOJ had ordered a complete re-evaluation of the Siegelman
3
486
matter. Note that this is the very time frame that Simpson says
she was told Karl Rove contacted the same Office of Public
Integrity to press for an indictment.
What else raises eyebrows about the role of politics here? Two of
the U.S. attorneys who were fired in the Alberto Gonzalez scandal
have testified that they lost their jobs after they refused demands
from local Republicans that they prosecute Democrats who were
political threats.
One U.S. attorney says that he was asked point-blank to indict
Democratic activists in an effort to influence an election dispute in
Washington state; the other says that two members of Congress
pushed him to indict certain Democrats to offset Republican
corruption allegations in the 2006 campaign cycle. These charges
by highly decorated Republican prosecutors are revolting, but
they are the same partisan taint alleged in the Siegelman
scenario.
Such claims, of course, raise the possibility that if chief
prosecutors were axed for not being partisan enough, that the
Justice Department may have actively encouraged prosecutors
who were willing to use their power as a political sword.
4
487
Without a doubt, the claims around Siegelman, most of which the
jury disbelieved but some of which the jury credited, are as
depressing as the misconduct he alleges led to his prosecution.
Government cannot ever be for sale, and our Legislature should
pass comprehensive reforms sharply limiting state campaign
contributions; furthermore, the state should end Alabama's
bipartisan tradition of influence peddling by enacting conflict of
interest rules precluding governors from appointing contributors to
state boards.
What I return to, however, is my moral conviction that the criminal
justice system cannot be twisted into a weapon to eliminate or
discredit political enemies. I have heard a few suggestions that
there is a "no harm, no foul" rule, that if a defendant is actually
guilty of wrongdoing, that an improper motivation is mitigated. I
cannot agree.
If prosecutorial discretion is laced with any improper bias, from
partisanship to race to self-interest, the results will be consistently
more wrong than right - and good people will have one more
reason to shy away from a public life.
U.S. Rep. Artur Davis, D-Birmingham, represents Alabama's 7th
Congressional District.
5
488
VIecuve J«MKx m A
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TIME
— -Oil
nMMl19.tlM.a4.aau*
Selective Justice in Alabama?
n» AAan/a^aSa
On may 8, 3(io2. Cla>tM Lamar (Lanny) Yowif Jr^ a lobb > ial ami laodlll dovkipcr dem ri bcrf by
acifuatfitafirr* aa a hanS*drteklfig *8ood ole boy.* in an eapamnv mood I n tbc iIomiiiumv offlera of Ibe
Ud Anomey 1b Moertfpnirfy. Afau Yoqbk actHcil into hia duir. pmoaai laMyrr at hb siilc. anl pnicre<kd
to ten a group o4 aoMOBcd paotemtora and imvtfigatort that he had paid lena o( thouaanda o( doUan la
appaiTtitly iDegal ca m p a igB contribulknia to miae oi the btg ge al aamet In Alabama Rcpubliran poiltlca.
Actoediag to Young, aaioBg tbc rcci|acnb of hb largnar were the statca foamer attorney gmeral Jeff
SetakKM, now a U.Sk. Senator, and V^^'tfham Piyiir Jr.. Scaitana* MMceMor m atlnaney gmcral and now a
federal jinlgc. Youn^ whoK debaded batcwicoft a air dcacribcd bi documeuta obtaiued by TIME, bcoune a
key ulMna la a nutlur caar In Alabama ikal broughl down a hlgb-paoAIr pulMcba and landed hbn In
federal prbun with aa 88*mcHMb acntencr. As It happeoed, howrm'. that official was the lop Demorrat
named by Young la a arrks <ji totenfiews. and none of the Rrfwbileans uhoac campaigns he Angered were
inf\T9lipeid in the cur. kt dooc praurcnlcd.
Ibc case of Don Skgpclman. the Democratk former Goatnwr of Alahanu who wu wiun i rtf d last yrur on
comiptMNi charfea, hu become a Hash point in the debate over the politictianou of the Buah
AdmlnbtTatkm's Jurtkr Drpartiucnr Forty-four former itatr att o rnrya general — Republicans ami
Demoenta • have ebed 'irregnlanties* In the mwatigatioa mid proaraition. saying they "cuU into (fucstion
tbe boik fotmeaa that b ttie hnebpin of our a\wtrm of jualkv.* Tbr Drpaitmmt of Justkr and tbe U.S.
Attorney's office strong|>' deny that pobtics pbnxd any part in Siegelman’s ptoaccution. They say tbe former
Governor, who rtvmily began arrving the Am mouths of hb raorr than seven-yvnr sentriMe. gol raacll>'
wbat be deserved. But Justice o fffcia ls have refused Id turn over dueumentatkia on the cusc lecpicsted by
the House iudtcian' CammMtcr. which schedukd a heunng ou Siegelman's proaeetitlou for Oct. ii.
NowTIMR has obtained smsUbt porttousof ihr miuestcd maicriils, lachMbng FBI and bate invmigamv
lerords that lay out some of Young's testinou)'. Ibe infannatiou prorfded fay the landfUl devekiper was
central to roughly half the 33 counts that Sscgelnun foecd for aBcgcdly accepting campaign c u ntriharti u nai.
I<45
NVIlV20OTS:57 AM
489
Selective Justice in A];ib;im;j? — Piinrout — TIME
htIp;//wvvw.Tiine.a>m/Tiine/iinntoiir/0, 88 l6.l66S220.00.htm]
money and gifts in exchange for official favors. (Sicgclman was acquitted on 25 of those counts and convicted on
seven. Young pleaded guilty to bribery-related charges and, in recognition of his cooperation with the
government, received a short two-j'car sentence and fine.) But what Young had to saj' about Sessions, Pryor and
other high-profile Alabama Republicans was even more remarkable for the simple fact that much of it had never
before come to light.
The Young transcripts will probably add fuel to charges that the Bush Administration pursued selective justice in
Alabama. Leura Canary, the U.S. Attorney whose office drove Siegelman's prosecution, is married to Bill Canary,
Alabama's most prominent political operative and a longtime fiiend of Karl Rov'e's. In May an Alabama law3'er
and Republican activist named Dana Jill Simpson gave a notarized statement that she heard Canary^ say Rove
"had spoken with the Department of Justice" abont "pursuing" Sicgclman, with help from two of Alabama's U.S.
Attorneys. Bill Canary called her charge "outrageous," and other alleged participants in the phone conversation
issued similar denials. (The White House declined to comment, citing Siegelman's pending appeal.) But last
month Simpson testified behind closed doors before the House Jndiciary Committee. Sources tell TIME that,
under penalty of petjury, she repeated her allegations about Canary and IU>vc.
Alabama is as red a state as the clay in its earth. After the years of rule by Southern Democrats, Republicans have
now taken up residence in the Governor’s mansion, as well as most statewide offices and congressional scats. In
the 1990s Rove helped orchestrate a G.O.P. near sweep of the Alabama Supreme Court.
In this new Republican landscape, Sicgclman emerged as one of the few Democratic stars, winning the
Governor’s race in 1998. He lost the scat in a close and contested race in 2002, but polls in 2003 showed that he
had a good chance of recapturing the governorship. Then came the first indictment from the U.S. Attorney in
Birmingham, charging Siegelman with using his position to rig a state bidding process. A judge dismissed the
case in 2004 for lack of evidence. Just as Siegelman was preparing to run for Governor again, a second round of
charges was brought in 2005 by the U.S. Attorney's office in Montgomery. His trial in 2006 overlapped with
Alabama's Democratic primary, in which Siegelman had initially been a heavy' favorite.
The investigation into Sicgclman began as an inquiry into a contract held by Young to build a state warehouse in
Alabama. Young was a wcll-likcd figure in Montgomery v^dio, by his own account, was in the habit of handing out
cash, checks, rides on his private airplane and other goodies to members of both political parties. In return, he
apparcntl}' hoped to receive favorable treatment for his garbage dumps and other lucrative state- related
business.
Young testified that he had furnished Siegelman with an all-terrain vehicle and a motorcycle, lavishing money on
the Governor and his aides. But he was an equal-opportunity influence monger. Early in the investigation, in
November 2001, Young announced tiiat five years earlier, he "personally provided Sessions with cash campaign
contributions,” according to an FBI memo of the interview. Prosecutors didn't follow up that surprising
statement with questions, but Young volunteered more. The memo adds that "on one occasion he [Young]
provided Session [sic] with $5,000 to $7,000 using two intermediaries," one of whom held a senior position with
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Sessions' campaign. On another occasion, the FBI records show. Young talked about providing ”$10,000 to
$15,000 to Session [sic]. Young had his seCTetaries and friends write checks to the Sessions campaign and Young
reimbnrsed the secretaries and friends for their contributions."
If true, Young's statements describe political monev’- laundering that would be a clear violation of federal law. In
1996, when Young said he had made the contributions, it ivas illegal to give a candidate more than $1,000 for a
primari'or general campaign. None of the individuals Young named as his intermediaries in making the
donations are listed in Federal Election Commission records as contributors to Sessions' 1996 U.S. Senate race.
"We have on record a $1,000 contribution from Mr. Young during the 1996 election cycle and no record of any
other contribution from him," says a spokesman for Sessions.
Young also openly offered details about what he said were donations totaling beriveen $12,000 and $15,000 to
Pryor’s campaign for state attorney general. Once again, Young had used the friends-and-colleagues maneuver.
According to the FBI record, "Young advised that during Pryor's 1998 campaign, he contributed money through
other individuals." Young named four people who "all wrote chocks to Ptyor's campaign and were reimbursed by
Young for their contributions.” At one point in the conversation. Young seemed particularly eager to tell all. "This
was not just for the Governor’s [Siegelman’s] campaign," he told investigators. "It was also for the attorney
general's campaign ... I gave you the example of five checks totaling $25,000. If I was there, I would write them
out or just sign them, and they would fill in who it was to or whatever." According to Young, atop official on
Pryor's campaign "would call and say, T need money for this, this or this,'" and Young would take care of the
request. ("I do not have a recollection of the amounts that you describe as having been contributed by Lanny
Young or his associates to my campaign," Pryor wrote in an c-mail to TIME.)
But it wasn't always as impersonal as handing over a stack of bills or checks. Among the illegal actions alleged in
Siegelman's indictment was his acceptance from Young of diousands of dollars' worth of free T shirts and
hundreds of specially embossed coffee mugs to give away as Christmas presents. The freebies were popular, said
Young. "I had got them coffee cups and stuff before and shirts, and 1 had the same thing for Bill [Pryor]." Young
estimated the value of the mugs at $13,000 to $15,000, and he even offered to share the extras with his
inquisitors: "I've still got a ease of his [Pryor’s coffee cups] ... if y'all want to come get them." ("I don't think wc
want to touch them right now," an investigator replied.)
Tliis evidence was heard by lawyers from U.S. Attorney Canary’s office, representatives of Alabama’s Republican
attorney general and an attorney from the Justice Department's public-integrity unit in Washington. But in an
unusual exercise of prosecutorial discretion, nearly all the payments and donations went uninvestigated. And
when Siegelman's defense team, which had obtained Young's statements amid tens of thousands of documents
provided in discovery, raised his accusations briefly in court, a judge quickly ruled them irrelevant.
Legal experts say prosecutors enjoy wide latitude in deciding whom to charge in criminal cases. But according to
Laurie Levenson, a former assistant U.S. Attorney and a prominent expert in legal ethics at Loyola Law School in
Los Angeles, there arc limits. "Certainly prosecutors would face a professional obligation to check out or verify
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the allegations in this case,” she says. "Not doing so would represent a potential abuse of prosecutorial
discretion." The key, she adds, is whether prosecutors chose not to pursue evidence of criminal activity by
Republicans because of political bias or a conflict of interest. Sometimes prosecutors have a more benign motive;
they may simply verify that allegations arc untrue or be unclear on how to categorize the offense or the relevant
statute of limitations. Certainly in Young’s statements about Sessions and Pryor, he did not allege a quid pro quo
for his mone}^ laundering of their campaigns. And whatever the involvement of their campaigns, Sessions and
Pryor both assert they were completely unaware of his confessed chicanery. But the U.S. Attorney's office chose
to prosecute Siegelman in no small measure on the basis of Young's word and chose not to investigate Sessions
and Piy'or — or their campaigns — on the basis of that same word.
Several people involved in the Siegelman case who spoke to TIME say prosecutors were so focused on going after
Siegelman that they showed almost no interest in tracking down what Young said about apparently illegal
contributions to Sessions, Pryor, other well-known figures in the Alabama G.O.P. and even a few of the state’s
Democrats. "It just didn't seem like that was ever going to happen," said an individual present during key parts of
the investigation. "Sessions and Ptyor were on die home team."
Tliat description is not just a metaphor: several of the lawyers involved in the Siegelman investigation were from
Pryor’s offiec and had worked for Ses5?ions as well when he held the post In such circumstances, say experts on
legal ethics, it is nearly always incumbent on investigators to inform a third party' and recuse themselves from
further questioning to avoid a conflict of interest. In this instance, it appears the investigators chose not to recuse
themselves but to simply ignore the allegations. (Steve Fcaga, an assistant U.S. Attorney in Canary’s office, says,
"I’m confident that wc investigated every viable federal crime and prosecuted them.")
The fact that most of Young’s claimed contributions apparently went unrecorded raises the possibility that he
never made them, that he was merely boasting. But it would also mean that he had lied to federal agents, which is
a felony, and Young was never charged with that crime. If he had lied, that would also have diminished Young's
credibility as a key government witness against Siegelman. One of Young's law\’ers tells TIME, "There was never
the slightest suggestion by prosecutors that the information my client prosuded about contributions to Sessions
and Pryor was in any way untrue." The judge in the Siegelman case also seemed to find Young credible: he stated
at sentencing that he had increased the sentencing guidelines for the Governor on the basis of a prosecution
memo that alleged "systematic and pervasive corruption" and cited a "criminal relationship with Lanny Young."
The controversy surrounding the case in Alabama is not that Siegelman went to prison and his Republican
colleagues didn’t. Without an investigation or even questions being asked, it's impossible to know whether any of
them committed illegal acts. The issue is that some of the same allegations that led to Siegelman's indictment
never merited so much as a follow-up when raised in connection with Republicans.
U.S. Attorney Canary has vigorously rejected the suggestion of any political influence on the case. She has
pointed out that the investigation of Siegelman originated not with her but with her Democratic predecessor as
U.S. Attorac}^ and in the office of Alabama’s then attorney general, Bill Pryor. Moreover, she notes that she was in
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charge of the case for only eight months, long before indictments were handed down, and then publicly recused
herself to avoid even the appearance of a conflict of interest.
Yet Canary was in charge when Young spoke about his payments to the Sessions and Pryor campaigns and to
other Alabama Republicans. At the same time, her husband's consulting firm, Capitol Group LLC, was being paid
close to .1>40,000 to advise Prj^or. A source who held a senior post in Canary's office during the long-running
investigation into Sicgclman says it's almost inconceivable that Canary would not have been informed of Young's
charges against prominent Republican officeholders and candidates. Canary denied that to TIME. The fact that
those charges were never looked at will only heighten suspicions that the Siegelman prosecution was a case of
selective justice and that in the Bush Administration, enforcing the law has been a partisan pursuit.
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Selective Prosecution - New York Times
http://www.nytimes.eom/2007/0S/06/opinion/06nionl .litml?p;j‘;ew;inte(l=...
Sfre iJork Stmw
August 6, 2007
EDITORIAL
Selective Prosecution
One part of the Justice Department mess that requires more scrutiny is the growing evidence that the
department may have singled out people for criminal prosecution to help Republicans win elections. The
House Judiciary Committee has begun investigating several cases that raise serious questions. The panel
should determine what role politics played in all of them.
Putting political opponents in jail is the sort of thing that happens in third-world dictatorships. In the
United States, prosecutions are supposed to be scrupulously nonpartisan. This principle appears to have
broken down in Alberto Gonzales’s Justice Depaitment — where lavvyei's were improperly hired for
nonpolitical jobs based on party membership, and United States attorneys were apparently fired for political
reasons.
Individual Democrats may be paying a personal price. Don Siegelman, a former Alabama governor, was the
state’s most prominent Democrat and had a decent chance of retaking the governorship from the Republican
incumbent. He was aggressively prosecuted by both the Binningbam and Montgomery United States
attorney’s offices. Birmingham prosecutors dropped their case after a judge harshly questioned it. When the
Montgomeiy office prosecuted, a juiy acquitted Mr. Siegelman of 25 counts, but convicted him of 7, which
appear to be disturbingly weak.
The prosecution may have been a political hit. A Repnblican lawyer, Dana Jill Simpson, has said in a sworn
statement that she heard Bill Canary, a Republican operative and a Karl Rove proteg6, say that his “girls” —
his wife, the United States attorney in Montgomeiy, and Alice Martin, the United States attorney in
Biimingham — would “take care” of Mr. Siegelman. Mr. Canaiy also said, according to Ms. Simpson, that
Mr. Rove was involved.
Georgia Thompson is a Wisconsin state employee wrongly put in jail on corruption chai*ges by the
Milwaukee United States attorney. Despite strong evidence that she was innocent, Steven Biskupic
prosecuted Ms. Thompson for corruption and got a comdetion. Tlie news hit shortly before a bitterly fought
governor’s race, and opponents of James Doyle, the state’s Democratic governor, used the conviction to
attack Mr. Doyle as cormpt. An appeals court later freed Ms. Thompson, but only after she had spent
months in jail.
The committee has requested documents from the Justice Department about those two cases. It should also
look into the investigation of Senator Robert Menendez by Christopher Christie, the United States attorney
for New Jersey. Based on the facts that have come out, Mr. Menendez appears to have done nothing wrong.
But word of the investigation leaked out in the fall of 2006, damaging Mr. Menendez’s reputation just when
Republicans were tiying to defeat him. It is unclear whose idea it was to conduct an investigation so close to
the election of Mr. Menendez’s lease of a building he had sold years eai'lier.
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Selective Prosecution - New York Times
http://www.nytinies.conV2007/0S/06/opinion/06nionl .litml?p;j‘;ew;inte(l=...
The Bush administration is throwing roadblocks in Congress’s way. It missed a deadline for turning over
documents, and it has refused to make some of the principal actors available to testify. The Judiciary
Committee should not be deterred. If Americans are being put in jail for political reasons, Congress must put
a stop to it.
Copyright 2007 The New York Times Company
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The Wechr indictment
http;//'www.pnst-g;i7ette.a>m/pg/07203/803200-l49.stni
post-gazette t-mw
Opinion
The Wecht indictment
Given the Bushies' record, you have to wonder if it's ail about politics
Sunday, July 22, 2007
The more we know about how the Bush adminisiraiion conducts itself, the harder it is to
believe the 84-count federal indictment agjunst ('yril Wccht, which alleges that he mixed
personal and county expenses, overbilled private clients and trading unclaimed cadavers for
university office space.
Dr. Wecht, of course, is the former Allegheny County coroner, the famous c<msultant and
commentator on cclchrily murders, and for m;uiy years the most flamboyantly loquacious,
brilliant, egotistical and thin-skinned public official in the region.
More to the point, he was, until his indictment, one of the county's most prominent
Democralie officeholders.
An amhitious and enthusiastic Bush panis;m like U.S. Attorney Mary Beth Buchanan might
well consider Dr. Wecht ti plum target, gotxl for mtiny browmie points at the White House.
Indeed, that is exactly the sort of thing this Justice Dcpanmcni requires from prosecutors --
just ask the nine who were summarily dismissed for failing to pursue Democratic politicians
and "voter fraud” with sufficient /cal.
This Wliitc House has been seven times more likely to go iiftcr load DcmocriUic officitds
than Republicans, according to a siutly by Donald Shields and John Cragan, two professors
emeriti from the University of Minnesota. No sh(x:k, then, tluit Ms. Bucliiuiiiii hitsn't indicted
a single GOP officeholder since taking the reins in 2001 while indicting or investigating at
least five prominent Democrats.
Contrast her record with that of former Attorney General Dick Thornburgh. When he was
U.S. attorney here, pmlisan considcnitioiis didn’t stop him from prosecuting a fellow
Republican, District Attorney Robert Duggan. It seems filling that Mr. Thornburgh is now a
member of Dr. Wechi's defense team.
This week, the U.vS. House Judiciary (^’onimillee asked to see documents related to the pursuit
of Dr. Wccht and two other high-profile Democratic officials. In a letter to Attorney General
Alberto Gonzales — a man who professes less knowledge of his department's workings than
one would expect from the cleaning suiff - Chairman John Conyers said that finding out the
truth about political profiling at the Justice Department was necessary to restore public faith
in our legal system.
None of this means Dr. Wccht is necessarily innocent of all the charges (he did beat similar
theft-of-service allegations in 1981, giving the current situation a dejaxm quality.) But
Bush-lcaguc politics certainly helps explain the overreaching nature of the indictment, which
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The Wechr indictment
http;//'www.pnst-g;i7ette.a>m/pg/07203/803200-l49.stni
reads in sonic places like a laundry lisl of petty offenses on par with taking office supplies
home fur persuntil use. Stealing pencils is bad and should be punished, but does it really
require the full force of the federal government?
It's true that prosecutors often throw multiple charges against the wall, not expecting them all
to stick. Still, Ms. Buchanan has tipped her hand in this case several times. She labeled Dr.
Wecht a "flight risk" who might flee to Israel (if he were Roman (latholic, would she have
feared his escape to Italy?). She ;ils'o reportedly wanted to march him through a public "perp
walk," and she pushed for a trial to take place one month before the 2006 election.
Suspecting her motives might seem paranoid in a vacuum, but this is just one small piece of a
big picture in which only the purest Bush loyalists seem able to hang onto their jobs. Anyone
w'ho doesn't carry water for the president's ideological agenda is marginalized, vilified or
shown the door; politics trumps fact, science, fairness and the public go<xl every time.
This has been driven home repeatedly in the departments of state, defense, energy and justice,
the CIA, KPA, FDA and more. Recent damning testimony from Dr. Richard H. Carmona,
President Bush's surgeon general from 2(KX) to 2(K)4, only emphasized tlic point.
I'hc doctor told Congress he was ordered to keep quiet on stem cclLs, cnicrgcncy
contraception and sex education. 'I'he Bushics tried to drag down his report on the dangers of
second-hand smoke. They didn't even want him attending the Specuil Olympics because of
the games' association with the Keiitiedys.
But the most revealing lesiimony came straight out of the playbook for fascist dictators: Dr,
C!amiona was ordered to insert President Bush's name three times on every page of every
speech he delivered.
It sounds like a scene from Woody Allen’s "Ban;tnas." but less funny. Perhaps Karl Rove ;dso
considered metking cvciyonc wcitr their uudcrwa'ar on the ouLsidc.
I confess a professiontd soft spot for Dr. Wecht. Ilis rulings, feuds and polysyllabic
speechifying were always good news copy, and his bombastic letters in response to perceived
slights were legendary. You weren't a real journalist in this town until you got one of his
flamers in the mrul -- or a complimentary note, for thiit matter -- and witliout him in the
medical examiner's office the local scene seems kind of pale.
Still, I would not defend hiin on that basis, any more ihiin I would convict him for once
likening Post-Clazcttc reporters to dung beetles. But under this prc,sidcnt, no nefarious
prosecutorial motives can be discounted and no denials of same can be trusted.
1 he jury has yet to convene on Dr. Wecht, but the verdict on the Bush administration is loud
and clear: 100 percent politicid.
Sally Kalson is a columnist for the Post-Gazette (skalsont^post-g^ette.cpm, 412-263-1610).
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Shf IjoA ©HIM
September ii, 2007
Democrats See Politics in a Governor’s Jailing
By ADAM NOSSITER
BIRMINGHAM, Ala. — House leaders are beginrung an investigation this week of the prosecution
of Don Siegelman, the former Democratic governor of Alabama who was imprisoned in June on
federal corruption charges. The case could become the centerpiece of a Democratic effort to show
that the Justice Department engaged in political prosecutions.
Republican s strongly deny the suggestion, and as Mr. Siegelman enters the fourth month of his
88-month sentence, the case is becoming a bitter flash point between Democratic officials and the
Bush administration.
Jill Simpson, an Alabama lavvyer who signed an af¥ida\it sa>ing she o^'erheard a Republican
political operati^’e connect the prosecution of Mr. Siegelman to Ka rl Rove, will be questioned under
oath this week by investigators for the House Judiciary Committee. The chairman of that
committee, Representative John Conyers Jr., Democrat of Michigan, has asked the Justice
Department to turn over its documents in the case.
The department has refused his request, sa>'ing in a letter last week to the committee that “we want
to avoid any perception that the conduct of our criminal investigations and prosecutions is subject
to political influence.”
On Monday, Mr. Conyers called the department’s position “unacceptable,” saying of its reasoning,
“This concern should lead to precisely the opposite result.”
The case is considered unusual by many legal ejqierts because actions like those Mr. Siegelman was
accused of — exchanging a seat on the state hospital licensing board for a contribution to an
education lottery’ campaign he was pushing — are hardly uncommon in state capitals around the
country.
“It’s unusual to see a bribery prosecution where the payment wasn’t to the defendant,” said Da\dd
A. Sklansky, a former federal prosecutor who teaches at the law school at the University of
California. Berkeley. “It seems to me the conduct in this case was similar to a lot of what we take as
normal for politics.”
Still, some legal experts say that federal prosecutors have wide latitude in interpreting the broad
bribery’ statutes and that Mr. Siegelman’s actions, as outlined by the government, could have
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crossed the line. Stephen Gillers, a professor at New York Uni\'ersitv School of Law, said the defense
claim that the prosecution had not pro\'ed corrupt intent does not undermine the comiction.
‘d think the government reply brief demolishes Siegelman’s legal argument on the current case
law,” Mr. Gillers said.
Nonetheless, Democrats are planning to conduct hearings on the case as part of a wide-ranging look
at what they say maybe other political prosecutions elsewhere.
Representative Artur G. Da^is, like Mr. Siegehnan an Alabama Democrat, said he wanted Mr. Rove,
the recently departed White House deputy chief of staff, to testify about Mr. Siegelman. Mr. Da\is
called Mr. Ro\'e “the most significant factual witness in this matter.”
Mr. Da^is, in his third term in Congress and a former federal prosecutor himself, said it was
“certainly plausible” Mr. Rove could have had a hand in the Siegelman prosecution. He cited Mr.
Rove’s involvement in the state’s politics in the 1990s and Alabama’s v\^olesale transition, bucked
by Mr. Siegelman, to Republican dominance.
Forty-four former state attorneys general, including some Republicans, from New York, California,
Massachusetts and elsewhere have signed a petition urging Congress to look into Mr. Siegelman’s
conviction, which his lawyers are appealing.
“There is reason to believe that the case brought against Governor Siegelman may have had
sufficient irregularities as to call into question the basic fairness that is the linchpin of our system of
justice,” the attorneys general wrote.
In Alabama, a small war of editorial boards has erupted since Mr. Siegelman was sentenced to
seven years and four months in prison in late June. Newspapers in the state’s smaller cities have
repeatedly raised questions about the former governor’s treatment.
Alabama Democrats are seething over a judge’s decision to have Mr. Siegelman immediately-
shackled and jailed on the day of sentencing, with no chance for him to seek bond or put his affairs
in order. Republicans say the ex -governor is nothing more than a crook who ran a “pay for play”
administration.
Mike Hubbard, chairman of the state’s Republican Party^, called Ms. Simpson’s allegations “a bunch
of hogwash” and said “the state of Alabama was for sale when Don Siegelman was governor.”
Democrats are equally passionate. “My sense is, there is a great unease with what has gone on
here,” said Jack Miller, former chairman of the Alabama Democratic Party. “It’s kind of, if it could
happen to him, it could happen to anybody.”
Mr. Siegelman, meanwhile, is in the federal prison in Oakdale, La. In a recent note to The
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Associated Press, he said his case would will eventually be seen as the “Watergate of 2008.”
The go\'emment prosecutors who sent Mr. Siegelman to prison have angrily rebutted any
suggestion of politics in several detailed statements, one of them criticizing national press co^^erage
of the case.
“My sole motivation for pushing the prosecution vras a firmly held belief, supported by
overwhelming evidence and the law, that former Governor Siegelman had broken the law and
traded his public office for personal and pohtical favors,” Louis V. Franklin Sr., the acting United
States attorney in Montgomeiy^, said in one statement. Mr. Franklin took o\^er the case after
demands that the sitting United States attomw, Leura G. Canary, recuse herself because her
husband, William, is active in the Republican Party and has ties to Mr. Ro\^e.
Yet questions about the Siegelman case persist, inclucLng about whether Mr. Franklin played the
decisive role he says he did, and not just among the former governor’s supporters.
For one thing, the prosecution of a high official like a governor is nearly always undertaken under
the watchful eye of Justice Department officials in Washington, former go^'emment lawyers say.
One of Mr. Siegelman’s former lawyers, G. Douglas Jones, former United States attorney in
Birmingham, says that at a crucial moment in 2004, when the Siegelman investigation seemed to
be flagging, he was told by government prosecutors in Montgomery that the “folks in Washington
said, Take another look at everything.’ ”
Referring to a unit of the Justice Department, Mr. Jones said, “There is no question but that the
Public Integrity Section was intimately involved.”
Democrats have tried to tie the case to the continuing dispute over the firing of se\’eral federal
prosecutors for what they say were political reasons.
After serving as secretary of state, attorney general and lieutenant governor, Mr. Siegelman was
elected governor in 1998. He was narrowly defeated in 2002 and for most of his term his
administration was under investigation, his lawyers say. “These guys doing the investigating w'ere
hell-bent on finding something Siegelman did wrong,” Mr. Jones said.
In June 2006 Mr. Siegelman was comicted by a federal jury' in Montgomery of accepting 8500,000
from Richard M. Scrushy, then the chief Kcecutive of the HealthSouth Corporation, in return for an
appointment to the state hospital licensing board.
The money was to be used to retire a debt incurred by Mr. Siegelman’s campaign for a state lottery
to fund education. Government prosecutors say Mr. Siegelman, as a co-guarantor, was personally
liable for the debt; his lawy'ers say that Mr. Siegelman’s signature w-as a formality and that he would
never ha\'e been expected to personally pay back the loan. Mr. Scrushy had ser\'ed on the same
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hospital board under three previous governors.
The ^\diite House has brushed off suggestions that Mr. Ro\'e may ha%^e been invoh'ed.
An associate of Mr. Rove’s in the state, Matthew C. McDonald, a Mobile law>'er, said Mr. Ro5'e had
maintained at least a passing interest in Alabama affairs. The interest dated back to his pivotal role
as a political consultant here in the 1990s, wdien he helped shift the state’s supreme court to the
Republicans. Mr. Rove opened an office in Montgomery, and would fly in and out regularly.
Representati\'e Da5'is pointed out that the case against the governor rested almost wholly on the
testimony of two cooperating witnesses, most of whose allegations w'ere rejected by the jury.
The most important of the witnesses, a former aide to Mr. Siegelman named Nick Bailey, testified
about the governor’s appointing Mr. Scrushy to the hospital board in exchange for the contribution.
But Mr. Bailey also admitted taking tens of thousands of dollars in bribes without the governor’s
knowledge, said he had not been in the room when Mr. Siegelman met with Mr. Scrushy, and could
offer only his recollection of a brief exchange with the governor on the matter.
In legal papers, however, the government dismissed the idea that its case was weak, saving the
“evidence was more than suftident to comnet defendant.”
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A Wt>mim Wrongly Convicted iind ;i U.S. Attorney Wdto Kept TIis Job http://www.nytinies.cotn/2007/04/l6/opinioii/ 1 6nion4.litml?p;jgew;inted=...
Sfjf iJork Stmw
April i6, 2007
EDITORIAL OBSERVER
A Woman Wrongly Convicted and a U.S. Attorney Who Kept
His Job
By ADAM COHEN
Madison, Wis.
Opponents of Gov. Jim Doyle of Wisconsin spent $4 million on ads last year trying to link the Democratic
incumbent to a state employee who was sent to jail on coimption charges. The effort failed, and Mr. Doyle
was re-elected — and now the state employee has been found to have been wi-ongly convicted. The entire
affair is raising serious questions about why a United States attorney put an innocent woman in jail.
The collection of Georgia Thompson has become part of the furor over the firing of eight United States
attorneys in what seems like a political pui'ge. While the main focus of that scandal is on why the attorneys
were fired, the Thompson case raises questions about why other prosecutors kept their jobs.
The United States Court of Appeals for the Seventh Circuit, which heard Ms. Thompson’s case this month,
did not discuss whether her prosecution was political — but it did make clear that it was wi'ong. And in an
extraordinary move, it ordered her released immediately, without waiting to mite a decision. “Your evidence
is beyond thin,” Judge Diane Wood told the prosecutor. “I’m not sure what your actual theoiy in this case
is.”
Members of Congress should ask whether it was by coincidence or design that Steven Biskupic, the United
States attomey in Milwaukee, turned a flim^ case into a campaign issue that nearly helped Republicans win
a pivotal governor's race.
There was good reason for the appeals court to be shocked. Ms. Thompson, a 56-year-old single woman,
seems to have lost her home and spent four months in prison simply for doing her job. Ms. Thompson, who
spent years in the travel industry before becoming a state employee, was responsible for putting the state’s
travel account up for competitive bid. Mr. Biskupic claimed that she awaixied the contract to an agency
called Adelman Travel because its C.E.O. contributed to Mr. Doyle’s campaign.
To charge her, Mr. Biskupic had to look past a mountain of evidence of innocence. Ms. Thompson was not a
Doyle partisan. She was a civil servant, hired by a Republican governor, with no identifiable interest in
politics. She was only one member of a seven-person committee that evaluated the bidders. She was not even
aware of the Adelman campaign contributions. She also had a good explanation for her choice: of the 10
travel agencies that competed, Adelman submitted the lowest-cost bid.
While Ms. Thompson did her job conscientiously, that is less clear of Mr. Biskupic. The decision to award
the conti'act — the supposed crime — occurred in Madison, in the juri.sdiction of Wisconsin’s other United
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States attomey. But for reasons that are hard to understand, the Milwaukee-hased Mr. Biskupic swept in and
took the case.
While he was investigating, in the fall of 2005, Mr. Biskupic informed the media. Justice Department
guidelines say federal prosecutors can publicly discuss investigations before an indictment only under
extraordinaiy circumstances. This case hardly met that test.
The prosecution proceeded on a schedule that worked out perfectly for the Republican candidate for
governor. Mr. Biskupic announced Ms. Thompson’s indictment in January 2006. She went to trial that
summer, and was sentenced in late September, weeks before the election. Mr. Biskupic insisted in July, as he
vowed to continue the investigation, that “the review is not going to be tied to the political calendar."
But the Thompson case was “the No. 1 issue” in the governor’s race, says the Wisconsin Democratic Paid}'
chainnan, Joe Wineke. In a barrage of commercials, Mr. Doyle’s opponents created an organizational chart
that linked Ms. Thompson — misleadingly called a “Doyle aide” — to the governor. Ms. Thompson appeared
in an unflattering picture, stamped “guilty,” and in another ad, her name was put on a graphic of jail-cell
doors slamming shut.
Most of the eight dismissed prosecutore came from swing states, and Democrats suspect they may have been
purged to make room for prosecutors who would help Republicans win close elections. If so, it might also
mean that United States attorneys in all swing states were under unusual pressure.
Wisconsin may be the closest saving state of all. President Bush lost it in 2004 by about 12,000 votes, and in
2000, by about half that. According to some Wisconsin politicians, Karl Rove said that their state was his
highest priority among governor’s races in 2006, because he believed a Republican governor could help the
party win Wisconsin in the 2008 presidential election.
Mr. Biskupic insists that he prosecuted Ms. Thompson only because he believed a crime was committed, and
that he did not discuss the political implications of the case or the timing with anyone in the Justice
Department or the White House. Congress has asked the Justice Department for all e-mail messages about
the case to help resolve the matter.
But even if there were no discussions, Mr. Biskupic may have known that his bosses in Washington expected
him to use his position to help Republicans win elections, and then did what they wanted.
That would be ironic indeed. One of the biggest weaknesses in the case against Ms. Thompson was that to
commit the crime she was charged >vith she had to have tried to gain personally from the contract, and
there’s no credible evidence that she did. So Mr. Biskupic made the creative argument that she gained by
obtaining “political advantage for her superiors” and that in pleasmg them she “enhanced job secuiity for
herself.” 'Those motivations, of conrse, may well describe why Mr. Bisknpic prosecuted Ms. 'Thompson.
CowTiaht 2007 The New York Times Ck>mnativ
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Sfrc iJork
October ii, 2007
EDITORIAL OBSERVER
The United States Attorneys Scandal Conies to Mississippi
By ADAM COHEN
Paul Minor is the son of Bill Minor, alegendary Mississippi journalist and chronicler of the civil rights
movement. He is also a wealthy trial lawyer and a mainstay of Mississippi’s embattled Democratic Party. Mr.
Minor has contributed $500,000 to Democrats over the years, including more than $100,000 to John
Edwards, a fellow trial lawyer. He fought hard to stop the Mississippi Supreme Court from being taken over
by pro-business Republicans.
Mr. Minor’s political activity may have cost him dearly. He is semng an 11-year sentence, convicted of a
crime that does not look much like a crime at all. The case is one of several new ones coming to light that
suggest that the department’s use of criminal prosecutions to help Republicans win elections may go farther
than anyone realizes.
The House Judiciary Committee is scheduled to hold hearings shortly on whether the Justice Department
engaged in selective prosecution in two other cases: when it went after Alabama Gov. Don Siegelman, who is
serving more than seven years in prison on dubious charges, and Georgia Thompson, a Wisconsin civil
servant who was freed after seiving four months on baseless corruption chai'ges.
Mr. Minor, whose firm made more than $70 million in fees in his state’s tobacco settlement, suspects it was
his role in the 2000 Mississippi Supreme Court elections that put a target on his back. The United States
Chamber of Commerce spent heavily to secure a Republican, pro-bushiess majority, while Mr. Minor
contributed heavily to the other side.
The chamber was especially eager to unseat Justice Oliver Diaz Jr., a former trial lawyer. He was re-elected
after a hard- fought, high-si>ending campaign. Then the prosecutions came from the politicized Bush Justice
Department.
Mississippi’s loose campaign finance laws allow lawyers and companies to contribute hearily to the judges
they appear before. That is terrible for justice, since the courts aro teeming with perfectly legal conflicts of
interest. It also creates an ideal climate for partisan selective prosecution. Since everyone is making
contributions and nurturing friendships that look questionable, a prosecutor can haul any lawyer and judge
he doesn’t like before a grand juiy and charge corruption.
The Justice Department indicted Justice Diaz and Mr. Minor on an array of unconvincing brtbery and fraud
charges. Justice Diaz was acquitted of all of them. The federal prosecutors then brought tax evasion charges
against him. Justice Diaz was acquitted zigedn and still sits on the Mississippi Supreme Court.
Mr. Minor w'-as not as lucly. He beat many of the charges in the first trial, but the juiy failed to reach a
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verdict on others. Federal prosecutors went after him again, and this time Mr. Minor was convicted on vague
allegations of trying to get “an unfair advantage” from judges — the very thing Mississippi’s lax campaign
finance laws are set up to allow.
The case fits a familiar pattern. The corruption Mr. Minor was charged with was distnrbingly vagne, as it was
with Ms. Thompson, whose only “crime” was awarding a contract to the lowest bidder, and Mr. Siegelman,
who was convicted for fairly routine political behavior.
Mr. Minor’s prosecution, like the others in this scandal, gave a big boost to the Repnblican Party. The case
intimidated trial lawyers into stopping their political activity. “The disappearance of the trial-lawyer money
all but wiped out the Democratic Party in Mississippi,” Stephanie Mencimer reports in her book, “Blocking
the Courthouse Door.”
There also appears to have been pro-Republican favoritism. Mr. Minor’s lawy'ers say prosecutors were not
interested in going after similar activity by trial lawyers who confributed to Republicans. Time magazine
recently reported that in Alabama, one of the main witnesses against Mr. Siegelman also told prosecutors of
possible cormption involving Jeff Sessions, a Republican senator from Alabama, but they did not pursue it.
And there is the matter of timing. The prosecution of Mr. Minor and Justice Diaz came just as Gov. Ronnie
Musgrove, a Democrat, was running for re-election against Republican Haley Barbour. The Republicans
spent heavily to tie Mr. Musgrove to Mr. Minor, and Mr. Musgrove was defeated.
In Wisconsin, Ms. Thompson’s trial coincided perfectly with Democratic Gov. Jim Doyle’s re-election
campaign, and Republicans tried to link Doyle to Thompson. Mr. Siegelman’s prosecution looks like it was
timed to prevent him from becoming governor again. It may be that all three of these cases were simply
attempts to use the Justice Department to get Republican governors elected.
Ms. Thompson was foitunate to get a good federal appeals court panel, which ordered her released. Mr.
Minor and Mr. Siegelman may not be so lucky. Former Attorney General Alberto Gonzales and many other
key players in the United States attom^s scandal are gone, but Congress has a lot more work to do in
uncovering the damage they have done to the justice system.
P rivacy Pc ftcy
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